These VAR Master Terms (the “Master Terms”) and any Order Form (each an “Order”) referencing these Master Terms (collectively, the “Agreement”), constitute an agreement between Digimarc Corporation (“Digimarc”) and the other party or parties to that Order (“VAR”).
These Master Terms are effective on the date the parties first enter an Order referencing these Master Terms (the “Effective Date”). The parties’ entry of an Order referencing these Master Terms constitutes VAR’s acceptance of these Master Terms. These Master Terms govern VAR’s receipt and use of the Digimarc Illuminate Platform, Products, Licensed Software, and Professional Services, as agreed between Digimarc and VAR in one or more Orders.
Digimarc may update these Master Terms from time to time without notice to VAR. VAR’s continued receipt or use of the Digimarc Illuminate Platform, Products, Licensed Software, or Professional Services constitutes VAR’s acceptance of updates to these Master Terms.
These Master Terms were last updated on 07 June 2024.
1. Definitions
1.1. “Active Digital Twin” means a Digital Twin associated with an active Product subscription.
1.2. “Affiliate” means an entity in which a party owns or controls, directly or indirectly, an equitable interest representing the right to elect the majority of the directors or persons performing similar functions or, if the law of the applicable jurisdiction does not permit a majority interest, then the maximum allowable under applicable law. An entity is only an Affiliate during the period that it meets this definition.
1.3. “Data Carrier” means a data carrier such as a Digimarc Watermark, 1D barcode, 2D barcode, NFC tag, RFID tag, or Bluetooth tag.
1.4. “Data Protection Laws” means all laws and regulations governing the processing of personal data under this Agreement.
1.5. “Deliverable” means a deliverable created by Digimarc through its performance of Professional Services.
1.6. “Digimarc Illuminate Platform” means the Digimarc Illuminate™ platform, a Digimarc Platform-as-a-Service product for creating Digital Identities and enabling Software-as-a-Service products utilizing Digital Identities.
1.7. “Digimarc Watermark” means a Digimarc data carrier containing a supported Digital Identity.
1.8. “Digital Identity” means a unique identifier for a VAR Product.
1.9. “Digital Twin” means the digital representation of a VAR Product on the Digimarc Illuminate Platform, including data captured about that VAR Product by the Digimarc Illuminate Platform.
1.10. “Digital Data Carrier” means a Data Carrier carrying a Digital Identity and linked to a Digital Twin.
1.11. “Digitized Item” means a VAR Product bearing a Digital Data Carrier.
1.12. “End User” means an end user of a VAR Application.
1.13. “High-Risk Activities” means uses of the Digimarc Illuminate Platform or Products that could lead to death, personal injury, or extensive catastrophic environmental damage, including the operation of nuclear facilities, air traffic control, and life support systems.
1.14. “Inactive Digital Twin” means a Digital Twin that is not associated with an active Product subscription.
1.15. “Licensed Software” means the Digimarc software licensed to VAR under an Order or otherwise provided to VAR for use under an Order, and all new versions of that software that Digimarc provides VAR under that Order.
1.16. “Mobile Application” means a VAR Application for mobile consumer devices integrating the Licensed Software to enable reading of supported Digital Data Carriers by End Users.
1.17. “Products” (formerly Product Services) means the set of Digimarc Illuminate Platform capabilities enabling a specific use case, as further described in the Product Descriptions and an Order.
1.18. “Product Descriptions” means the descriptions of Products at https://www.digimarc.com/legal/products, as updated by Digimarc from time to time.
1.19. “Professional Services” means professional services provided by Digimarc under an Order.
1.20. “Service Level Agreement” means the service levels for the Digimarc Illuminate Platform and maintenance and support services for the Licensed Software at https://www.digimarc.com/legal/digimarc-sla, as updated by Digimarc from time to time.
1.21. “Services” means the Products and Professional Services.
1.22. “Third-Party Software” means third-party software incorporated in the Licensed Software, as identified in an Order or otherwise identified by Digimarc in writing. Third-Party Software is not Licensed Software.
1.23. “VAR Application” means a VAR product or service that interacts with the Digimarc Illuminate Platform or incorporates the Licensed Software.
1.24. “VAR Client” means a client of VAR.
1.25. “VAR Client Product” means a physical or digital VAR Client product bearing a Data Carrier.
1.26. “VAR Data” means data provided by VAR or VAR Clients or collected by Digimarc from VAR, VAR Clients, or End Users in connection with VAR, VAR Clients’, and End Users’ use of the Digimarc Illuminate Platform, Products, or Licensed Software.
1.27. “VAR Materials” means materials provided by VAR or a VAR Client to Digimarc for Digimarc’s use to provide the Professional Services.
2. Orders
2.1. Orders. VAR may order Digimarc Illuminate Platform access, Products, Licensed Software, and Professional Services from Digimarc using an Order. An Order is not effective until both parties have signed that Order. Digimarc will provide VAR the Digimarc Illuminate Platform access, Products, Licensed Software, and Professional Services stated in each Order in consideration of VAR’s payment of the fees stated in that Order. If VAR requests professional services without the parties entering an Order, VAR shall pay Digimarc for those professional services at Digimarc’s standard rates.
2.2. Conflicts. In case of conflict between these Master Terms and an Order, that Order controls.
2.3. Change Orders. Either party may propose modifications to an Order by submitting a change order to the other party. If the modifications proposed by a party affect the amount due or the timing of performance under that Order, the parties may negotiate a mutually acceptable adjustment to the amounts due or time of performance, as applicable, under that Order. A change order is not effective until both parties have signed that change order.
3. License Grants
3.1. Licenses to VAR.
3.1.1. Platform License Grant. Digimarc hereby grants to VAR a worldwide, non-exclusive, non-transferable, non-sublicensable (except as expressly stated in an Order) right to access and use the Digimarc Illuminate Platform, including through application programming interfaces (APIs) if supplied by Digimarc at its discretion, including to use the Products identified in an Order, subject to the terms of that Order.
3.1.2. Software License Grant. Digimarc hereby grants to VAR a worldwide, non-exclusive, non-transferable, non-sublicensable (except as expressly stated in an Order) license to use internally, reproduce, and distribute internally the Licensed Software, subject to the terms of the applicable Order.
3.2. Licenses to Digimarc.
3.2.1. VAR Data License Grant. VAR hereby grants to Digimarc a worldwide, non-exclusive, non-transferable, non-sublicensable license to use internally, reproduce, and distribute internally the VAR Data, to provide the Services.
3.2.2. VAR Materials License Grant. VAR hereby grants to Digimarc a worldwide, non-exclusive, non-transferable, non-sublicensable license to use internally, reproduce, and distribute internally the VAR Materials, solely as necessary to provide the Professional Services.
4. Licensed Software
4.1. Delivery. Digimarc will provide VAR access to the Licensed Software licensed under each Order within ten business days after entry of that Order.
4.2. Maintenance. Digimarc will provide VAR new versions of the Licensed Software in accordance with the Service Level Agreement. New versions of the Licensed Software may keep prior versions of the Licensed Software current as to functionality; correct errors, install patches, fix bugs, or perform similar enhancements; and add new enhancements, features, or functionality.
5. Products
5.1. Digimarc Obligations. Digimarc will provide VAR the Digimarc Illuminate Platform, Products, and Licensed Software as described in each Order. Digimarc will provide VAR the Digimarc Illuminate Platform in accordance with the Service Level Agreement. Digimarc’s obligations under this section do not apply in the event of: (a) VAR’s use of the Digimarc Illuminate Platform, Products, or Licensed Software other than in accordance with the Service Level Agreement and an Order; (b) VAR’s alterations to the Digimarc Illuminate Platform, Products, or Licensed Software; (c) problems with or caused by software or hardware provided by VAR or any third party; or (d) VAR’s use of the Digimarc Illuminate Platform, Products, or Licensed Software with any hardware, software, or services not approved by Digimarc in writing.
5.2. VAR Obligations. VAR shall, and VAR shall ensure its VAR Clients: (a) comply with the usage guidelines for the Digimarc Illuminate Platform and Products specified in the Service Level Agreement; (b) use the Digimarc Illuminate Platform, Products, and Licensed Software only as authorized under an Order and not for any High-Risk Activities; (c) promptly provide Digimarc with all complete and accurate information, cooperation, access, facilities, equipment, and assistance required by Digimarc to perform its obligations under this Agreement; (d) keep secure and confidential any API keys and passwords used to access the Digimarc Illuminate Platform; and (e) enter an agreement with all VAR Clients End Users that provides Digimarc the rights necessary to perform its obligations under this Agreement and provides Digimarc the same level of protection as is provided by VAR under this Agreement. VAR is liable for all activities undertaken on the Digimarc Illuminate Platform when accessed using its API keys and passwords.
5.3. VAR Restrictions. VAR shall not, and VAR shall ensure its VAR Clients and End Users do not: (a) exceed the usage limitations for the Digimarc Illuminate Platform and Products specified in the Service Level Agreement; (b) post or transmit anything using the Digimarc Illuminate Platform or Products which is technically harmful (including computer viruses, logic bombs, Trojan horses, worms, harmful components, corrupted data, or other malicious software or harmful data); (c) access or attempt to access information and services of third parties to which Digimarc has not provided authorized access; (d) cause access to or use of the Digimarc Illuminate Platform to be interrupted, damaged, or impaired; (e) redistribute, encumber, sell, rent, lease, or transfer the Digimarc Illuminate Platform or Products, other than as permitted under an Order; (f) probe, scan, test the vulnerability of, or breach the security or authentication measures on, the Digimarc Illuminate Platform or any network connected to the Digimarc Illuminate Platform; (g) engage in any High-Risk Activities; (h) access the Digimarc Illuminate Platform, Products, or Licensed Software for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes; or (i) access, store, distribute, or transmit any viruses, or any material that: (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing, or racially or ethnically offensive; (ii) facilitates illegal activity; (iii) depicts sexually explicit activity; (iv) promotes unlawful violence; (v) is discriminatory based on race, gender, color, religious belief, sexual orientation, disability; or (vi) is otherwise illegal or causes damage or injury to any person or property, and Digimarc may, without liability or prejudice to VAR or any VAR Client, disable VAR’s or any VAR Clients’ access to any material that violates the provisions of this section. VAR shall use reasonable efforts to prevent unauthorized access to, or use of, the Digimarc Illuminate Platform, Products, and Licensed Software, and VAR shall promptly notify Digimarc of any such unauthorized access or use. VAR is responsible and liable for VAR Clients’ use of the Digimarc Illuminate Platform, Products, and Licensed Software.
6. Data Processing
VAR shall comply with all Data Protection Laws in connection with its use of the Digimarc Illuminate Platform, Products, and Licensed Software, including those in respect of the placing and use of cookies and the receipt of consent to use cookies from VAR Clients and End Users. VAR represents and warrants to Digimarc that VAR has obtained and will obtain all personal data included in VAR Data used with the Digimarc Illuminate Platform, Products, and Licensed Software in a lawful manner, consistent with Data Protection Laws. Digimarc will process personal data included in VAR Data in accordance with all Data Protection Laws and the Data Processing Agreement at https://www.digimarc.com/legal/data-processing-agreement.
Digimarc may collect and analyze data and other information relating to the provision, use, and performance of the Digimarc Illuminate Platform, Products, Licensed Software, and related systems and technologies. Digimarc may: (a) use such information and data to enhance the Digimarc Illuminate Platform, Products, and Licensed Software and for other development, diagnostic, and corrective purposes in connection with the Digimarc Illuminate Platform, Products, and Licensed Software, and (b) maintain anonymized data obtained in the course of providing the Digimarc Illuminate Platform, Products, and Licensed Software, in Digimarc’s databases for product enhancement, validation of its professional norms and standards development, and for benchmarking and industry studies, provided that such data will only be used or disclosed in a form not capable of identifying VAR, any individual, or any specific transaction.
7. Proprietary Rights
7.1. Ownership. The Digimarc Illuminate Platform, Products, and Licensed Software are licensed and not sold. Digimarc and its suppliers retain all right, title, and interest in and to the Digimarc Illuminate Platform, Products, and Licensed Software. Digimarc may use suggestions from VAR to improve its products and services.
7.2. No Reverse Engineering. Except as expressly permitted by these Master Terms or under applicable law: (a) VAR shall not reverse engineer, decompile, disassemble, redistribute, modify, or create derivative works of, the Digimarc Illuminate Platform, Products, or Licensed Software, or access or use the Digimarc Illuminate Platform, Products, or Licensed Software to build a product or service that competes with Digimarc; and (b) VAR shall not copy, modify, duplicate, mirror, republish, download, display, transmit, or distribute the Digimarc Illuminate Platform or Products. If VAR creates any derivative works of the Digimarc Illuminate Platform, Products, or Licensed Software, VAR hereby assigns all right, title, and interest in and to those derivative works to Digimarc. VAR shall promptly notify Digimarc if VAR learns that anyone has or is attempting to undertake the activities prohibited by this section. Digimarc, at its discretion, may terminate this Agreement immediately if VAR violates this section.
8. Fees and Payment
8.1. Fees. VAR shall pay Digimarc the fees stated in each Order without deduction or set-off. VAR shall reimburse Digimarc for reasonable travel and related expenses incurred in its performance of Professional Services.
8.2. Payment. VAR shall pay each invoice issued by Digimarc within 30 days of issuance. VAR shall pay Digimarc interest on overdue amounts at a rate of 1% per month or the maximum rate allowed under applicable law, whichever is lower, if Digimarc charges that interest. Digimarc may suspend its provision of the Digimarc Illuminate Platform, Products, and Licensed Software until Digimarc receives payment of any overdue amounts.
8.3. Fee Adjustment. Unless otherwise agreed between Digimarc and VAR in an Order, on January 1 of each year, each of the fee and hourly rate amounts stated in each Order will increase by the Consumer Price Index for the full calendar year most recently ended plus an additional two percentage points. “Consumer Price Index” means the Consumer Price Index published by the Bureau of Labor Statistics of the United States Department of Labor for All Urban Consumers (CPI-U), U.S. City Average, All items, not seasonally adjusted, 1982-1984=100 reference base.
8.4. Taxes. VAR shall pay to Digimarc an amount equal to any sales tax, service tax, use tax, or similar tax that Digimarc is required to collect in connection with this Agreement. VAR is responsible for all other taxes due in connection with this Agreement, excluding taxes on Digimarc’s income. Amounts owed to Digimarc must be paid without deduction or withholding for any taxes.
8.5. Records. VAR shall maintain records sufficient to verify VAR’s calculation of amounts due under this Agreement. VAR shall maintain those records for no less than three years after the end of the calendar year during which they are created or, in the event of a dispute between the parties involving those records, until the dispute is resolved, whichever is later.
8.6. Audit. Digimarc and its authorized representatives may conduct audits to verify VAR’s compliance with its obligations under this Agreement. VAR shall facilitate each audit by providing access to its premises and all records, other documents, and information relating to this Agreement, as requested by Digimarc and its authorized representatives. If an audit reveals an underpayment, VAR shall promptly pay Digimarc the amount of that underpayment, including interest. If an audit reveals an underpayment of 5% or more, VAR shall also pay Digimarc an amount equal to the entire cost of the audit.
9. Term and Termination
9.1. Term. These Master Terms are effective on the Effective Date and will remain in effect until all Orders have terminated, unless earlier terminated (the “Term”).
9.2. Termination for Breach. Either party may terminate this Agreement on written notice to the other party if the other party fails to cure a material breach of this Agreement within 30 days after receiving notice of the breach (a “Material Breach”).
9.3. Termination for Default. Either party may terminate this Agreement on written notice to the other party if: (a) the other party files a petition for bankruptcy or is adjudicated a bankrupt; (b) a petition in bankruptcy is filed against the other party and the petition is not dismissed within 60 days; (c) the other party becomes insolvent or makes an assignment for the benefit of its creditors or an arrangement for its creditors pursuant to any bankruptcy or other similar law; (d) the other party discontinues its business; or (e) a receiver is appointed for the other party (each an “Event of Default”).
10. Effect of Termination
10.1. Effect of Termination.
10.1.1. Order Termination. On termination of an Order: (a) the licenses and other rights granted to VAR under that Order will terminate, (b) VAR shall cease using and return or destroy the Licensed Software licensed under that Order, and (c) Digimarc will cease providing Services under that Order. Termination of an Order will not result in a refund of fees paid or a waiver of fees accrued under that Order.
10.1.2. Master Terms Termination. On termination of these Master Terms, the licenses and other rights granted to VAR in these Master Terms will terminate, except as follows: with the exception of termination for VAR’s Material Breach, Event of Default, or violation of Section 7.2 (No Reverse Engineering), these Master Terms will continue to apply to each Order in effect as of the date of termination of these Master Terms until that Order is terminated.
10.2. Survival. The following provisions will survive termination of these Master Terms and all Orders surviving termination of these Master Terms: Sections 1 (Definitions); 6 (Data Processing); 7 (Proprietary Rights); 8 (Fees and Payment), with respect to the period prior to termination; 10 (Effect of Termination); 12 (Indemnification); 13 (Warranty Disclaimer); 14 (Limitation of Liability); 15 (Confidential Information), as stated in that section; and 16 (Miscellaneous).
11. Warranties
11.1. Reciprocal Warranties. Each party represents and warrants to the other party that: (a) it has full power and authority to execute this Agreement and to perform its obligations under this Agreement; (b) this Agreement constitutes a legal, valid, and binding obligation; (c) neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement will violate or conflict with any of its obligations; and (d) it will comply with all laws and regulations applicable to this Agreement.
11.2. VAR Warranty. VAR represents and warrants to Digimarc that it all rights necessary to provide Digimarc the VAR Data and VAR Materials.
12. Indemnification
12.1. VAR Indemnity. VAR shall indemnify and defend Digimarc and its directors, officers, and employees from and against all damages, losses, judgments, authorized settlements, reasonable legal fees, and court costs resulting from any claim of any third-party action, suit, or proceeding arising out of or relating to End Users’ use of VAR Applications or Digimarc’s use of VAR Data consistent with the terms of this Agreement.
12.2. Digimarc Indemnity. Digimarc shall indemnify and defend VAR and its directors, officers, and employees from and against all damages, losses, judgments, authorized settlements, reasonable legal fees, and court costs resulting from any claim of any third-party action, suit, or proceeding alleging that the Digimarc Illuminate Platform or Licensed Software infringe the intellectual property rights of that third party. Digimarc’s obligations under this section do not apply to the extent the claim is based on unauthorized use or modification of the Digimarc Illuminate Platform or Licensed Software; Licensed Software developed or customized in accordance with VAR’s designs, requirements, or specifications; use of the Digimarc Illuminate Platform or Licensed Software in combination with other products, equipment, software, or data not supplied by Digimarc, where the claim would have been avoided but for the combination of the Digimarc Illuminate Platform or Licensed Software with other products, equipment, software, or data not supplied by Digimarc.
12.3. Indemnification Procedures. A party entitled to indemnification under this section (the "Indemnified Party”) shall provide the party obligated to provide indemnification under this section (the “Indemnifying Party”) prompt written notice of any indemnified claim, provided Indemnified Party’s failure to give Indemnifying Party such notice will not relieve Indemnifying Party of its obligations under this section with respect to the indemnified claim except to the extent that Indemnifying Party is materially prejudiced by the failure. Indemnifying Party has the sole right to enter or consent to any settlement, compromise, or discharge (including the consent to entry of any judgment) of any indemnified claim, provided Indemnified Party must consent to any settlement, compromise, or discharge that does not contain a full and unconditional release of Indemnified Party. Indemnified Party shall reasonably cooperate with Indemnifying Party in the defense of any indemnified claim.
12.4. Mitigation. If any component of the Digimarc Illuminate Platform or Licensed Software becomes, or in Digimarc’s opinion is likely to become, the subject of an infringement or misappropriation claim, Digimarc may, at its own expense, procure for VAR the right to continue using that component of the Digimarc Illuminate Platform or Licensed Software, replace or modify that component of the Digimarc Illuminate Platform or Licensed Software so that it becomes non-infringing, or terminate the applicable Order or this Agreement and provide VAR a prorated refund of any prepaid, unearned fees.
12.5. Exclusive Right and Remedy. This section sets forth the exclusive rights and remedies of the parties with respect to any indemnified claims or other matters of indemnification under this Agreement.
13. Warranty Disclaimer
WITH THE EXCEPTION OF THE EXPRESS WARRANTIES MADE BY DIGIMARC IN THIS AGREEMENT OR ANY ORDER, THE LICENSED SOFTWARE, DIGIMARC ILLUMINATE PLATFORM, SERVICES, AND DELIVERABLES ARE PROVIDED “AS-IS” AND WITHOUT WARRANTY OF ANY KIND. DIGIMARC EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES, WHETHER STATUTORY, EXPRESS, OR IMPLIED, INCLUDING ALL WARRANTIES WHICH, BUT FOR THIS PROVISION, MIGHT ARISE FROM COURSE OF DEALING, CUSTOM, OR TRADE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
14. Limitation of Liability
WITH THE EXCEPTION OF EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT; EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT; AND EITHER PARTY’S INFRINGEMENT, VIOLATION, OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING FROM ANY CLAIM OR ACTION UNDER THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. IN NO EVENT WILL DIGIMARC’S AGGREGATE LIABILITY TO VAR EXCEED THE AMOUNTS PAID BY VAR TO DIGIMARC UNDER THE ORDER GIVING RISE TO THE LIABILITY.
15. Confidential Information
15.1. Definition. In the course of the relationship between the parties established by this Agreement, each party may receive or have access to information and material of the other party or its Affiliates that is confidential or proprietary (“Confidential Information”).
15.2. Exceptions. Confidential Information does not include information that: (a) was in the public domain or publicly known at the time it was communicated to the receiving party by the disclosing party; (b) entered the public domain or became publicly known after it was communicated to the receiving party by the disclosing party through no fault of the receiving party; (c) was in the receiving party’s possession free of any obligation of confidence at the time it was communicated to the receiving party by the disclosing party; or (d) was developed by employees, contractors, or agents of the receiving party independently of and without reference to any information communicated to the receiving party by the disclosing party.
15.3. Obligations. Confidential Information may only be used by employees, contractors, agents, legal advisors, and financial advisors of the receiving party and its Affiliates who have a need to know that information for purposes related to this Agreement (each a “Representative”), provided each Representative signs a confidentiality agreement at least as protective of the disclosing party’s Confidential Information as these Master Terms before receiving any disclosing party Confidential Information. Each party is liable for its Representatives’ breach of the terms of this section as though that breach was its own. The receiving party shall protect Confidential Information of the disclosing party from unauthorized disclosure to third parties with the same degree of care as the receiving party uses for its own similar information, but no less than a reasonable degree of care, during the Term and for a period of five years after termination of this Agreement, unless the Confidential Information is a trade secret, in which case the receiving party shall protect the Confidential Information until it is no longer a trade secret. Either party may disclose the Confidential Information of the other party if required by a valid court order, subpoena, or government regulation, provided that the party required to make the disclosure notifies the party whose Confidential Information is to be disclosed promptly and in writing of the required disclosure and cooperates with the other party if the other party seeks to contest or limit the scope of that disclosure.
16. Miscellaneous
16.1. Governing Law; Forum. This Agreement, and all disputes arising under or relating to this Agreement, are governed by the laws of the State of Oregon, USA, excluding its conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act are expressly disclaimed and do not apply to this Agreement. The parties agree that the state and federal courts of the State of Oregon, USA, have exclusive jurisdiction to resolve all disputes arising from or relating to this Agreement. Each party irrevocably waives all objections to the jurisdiction of those courts.
16.2. Assignment. VAR shall not assign this Agreement, including by any Change of Control, without Digimarc’s prior written consent. “Change of Control” means an acquisition, a sale of business to which this Agreement pertains, or a merger, consolidation, or reorganization involving VAR, regardless of whether VAR is a surviving or disappearing entity. Digimarc may assign this Agreement to any party agreeing to be bound by its terms. This Agreement binds, and inures to the benefit of, the parties and their respective successors and permitted assigns. Any attempt to assign this Agreement other than as expressly permitted by this Agreement is void from its inception.
16.3. Notices. Notices are validly given on the earlier of confirmed receipt by the receiving party or three days after dispatch by courier or certified mail, postage prepaid, properly addressed to the receiving party. Digimarc’s address for notice is stated below. VAR’s address for notice is that stated in the last completed Order. Either party may change its address by providing the other party notice in accordance with this section.
Digimarc Corporation
8500 SW Creekside Place
Beaverton, Oregon 97008
USA
Attn: General Counsel
16.4. Independent Contractors. The relationship of the parties established by this Agreement is that of independent contractors and neither party is a partner, employee, agent, or joint venturer of, or with, the other.
16.5. Non-Exclusivity. The relationship of the parties established by this Agreement is non-exclusive, and nothing contained in this Agreement restricts Digimarc from offering to sell or license, or selling or licensing, any products or services to anyone for any use.
16.6. Force Majeure. Neither party is responsible for its failure to perform under this Agreement due to unforeseen circumstances or causes beyond its control, such as acts of God, wars, riots, embargoes, strikes, acts of civil or military authorities, fires, or floods (each a “Force Majeure Event”), provided that the nonperforming party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance.
16.7. Non-Waiver. The failure of either party to enforce any provision of this Agreement is not a waiver of the right of that party to enforce that provision.
16.8. Severability. If any provision of this Agreement is held to be unenforceable in any respect, the unenforceability of that provision will not affect any other provision, and this Agreement will be construed as though the unenforceable provision never existed.
16.9. Headings. The section headings used in this Agreement are for reference only and are not intended to be used to interpret this Agreement.
16.10. Counterparts. The parties may execute this Agreement in counterparts, each of which is deemed an original and all of which together constitute the same document.
16.11. Currency. VAR shall make all payments due under this Agreement in United States dollars, except as otherwise agreed in an Order.
16.12. No Third-Party Beneficiaries. No other person or entity, including any VAR Client or End User, is a third-party beneficiary to this Agreement.
16.13. Modification; Entire Agreement. Modifications to this Agreement must be made by a writing signed by an authorized representative of each party. This Agreement sets forth the entire understanding between the parties to this Agreement and supersedes and merges all previous written and oral negotiations, commitments, understandings, and agreements between the parties relating to the subject matter of this Agreement. All representations and warranties set forth in this Agreement are contractual in nature only and subject only to the remedies set forth in this Agreement. VAR has not relied and will not rely on any other representations or warranties. No terms of any purchase orders issued by VAR in relation to this Agreement are binding on Digimarc.
16.14. No Construction against Drafter. Any principle of contract construction or rule of law that provides that an agreement is to be construed against the drafter of the agreement if there is any inconsistency or ambiguity in the agreement does not apply to this Agreement.
16.15. Costs. Each party will bear its own costs under this Agreement, except as expressly provided in an Order.
16.16. Injunctive Relief. If a party breaches or threatens to breach any term of this Agreement or any Order, the other party may suffer irreparable harm for which monetary damages alone are not adequate, and the other party may seek injunctive relief in any court of competent jurisdiction.
