Fulcrum Acoustic End-User License Agreement

This End-User License Agreement (this "Agreement") is a legal agreement between you (as defined below) and Fulcrum Acoustic, LLC, a Massachusetts limited liability company ("Fulcrum Acoustic"). Please read this Agreement carefully before accessing or using Fulcrum Acoustic software, including One, VUI, Micflex, Choirflex, Venueflex and/or other hardware and software provided by Fulcrum Acoustic (collectively, the "Software") or making the Software available to users designated by you to access and use the Software on your behalf ("Authorized Users"). This Agreement sets forth the terms under which you may use the Software. By clicking "I accept," accessing or using the Software, or making the Software available for use by users, you are entering into and agreeing to be bound by the terms of this Agreement. You are not authorized to access or use the Software or make the Software available for use by Authorized Users if you do not agree to the terms and conditions of this Agreement.

"You" (whether capitalized or not) refers to the person or entity in possession or control of the server or software installed with One, VUI, Micflex, Choirflex, Venueflex and/or other hardware and software provided by Fulcrum Acoustic (the "Fulcrum Acoustic Server") or the person or entity otherwise using or accessing the Software. By selecting the "I accept" button below this Agreement, (i) you accept this Agreement on behalf of either an entity for which you are authorized to act (e.g., an employer or an entity with whom you've contracted with to provide work or services) and acknowledge that such entity is legally bound by this Agreement (and you agree to act in a manner consistent with this Agreement) or, if there is no such entity for which you are authorized to act, you accept this Agreement on behalf of yourself as an individual and acknowledge that you are legally bound by this Agreement, and (ii) you represent and warrant that you have the right, power, and authority to act on behalf of and bind such entity (if any) or yourself. You may not accept this Agreement on behalf of another entity unless you are an employee or other agent of such other entity with the right, power, and authority to act on behalf of such other entity. If the hardware on which the Software will be installed is owned or controlled by the federal government of the United States or any branch, department, administrative body, or other division of the federal government of the United States, or if you or any Authorized User will access or use any Fulcrum Acoustic Materials (as defined below) on behalf of any of the foregoing, then Section 13 of this Agreement applies and includes terms that modify other terms and conditions in this Agreement.

Fulcrum Acoustic may modify these the terms and conditions of this Agreement at any time in Fulcrum Acoustic's sole discretion. A current version of the terms and conditions will be available at http://docs.fulcrum-acoustic.com/one/eula. Modifications will be effective when made available at that URL, and your continued use of any Fulcrum Acoustic Materials after a modification to the terms and conditions constitutes your acceptance of and agreement to the modified terms and conditions.

Based on the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, you and Fulcrum Acoustic agree as follows:

1. Overview. The Software works in conjunction with, and enables access to, the Fulcrum Acoustic Server, as well as manage networks and configure systems comprised of Fulcrum Acoustic Servers, client software and other Fulcrum Acoustic products.

2. Rights and Restrictions.

   2.1 License. Subject to and conditioned on your continuous and strict compliance with this Agreement, Fulcrum Acoustic grants you a non-exclusive, non-sublicensable, non-transferable, limited license, for your internal use only, for the term of this Agreement, to access and use the Software, and for any user's guides, specifications, acoustical data, audio programming information, network configurations, and other data, materials and documentation available from Fulcrum Acoustic online or provided by Fulcrum Acoustic to you from time to time (the "Documentation"). The Software and Documentation are referred to collectively as the "Fulcrum Acoustic Materials."

   2.2 Prohibited Conduct. You are solely responsible for obtaining all consents and approvals necessary to access a Fulcrum Acoustic Server that is not owned by you, and you agree not to use the Software to access or use any Fulcrum Acoustic Server owned by a third party without first obtaining all necessary consents and approvals. You agree to use the Software strictly in accordance with this Agreement and not to, and not to permit others to: (i) reverse engineer, decompile, disassemble, derive the source code of the Software; (ii) make any modification, adaptation, improvement, enhancement, translation or derivative work from any Fulcrum Acoustic Materials; (iii) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of Fulcrum Acoustic or its affiliates, partners, suppliers or the licensors in any Fulcrum Acoustic Materials; (iv) use, copy, modify, alter, or transfer, electronically or otherwise, the Fulcrum Acoustic Materials except as expressly permitted in this Agreement; (v) except to the extent contemplated by the Documentation, make the Software available over a network or other environment permitting access or use by multiple users at the same time; (vi) use the Fulcrum Acoustic Materials for any purpose for which it is not designed or intended; (vii) redistribute, sell, rent, lease, sublicense, or otherwise transfer rights to the Fulcrum Acoustic Materials, in whole or in part, whether in a stand-alone configuration or as incorporated with other software code written by any party, except as expressly permitted in this Agreement; or (viii) permit Authorized Users to take any action in violation of the Authorized User Terms and Conditions. You will not (a) circumvent or remove any form of copy protection used by Fulcrum Acoustic in connection with the Fulcrum Acoustic Materials, or use the Fulcrum Acoustic Materials together with any authorization code, serial number, or other copy-protection device not supplied by Fulcrum Acoustic, (b) circumvent or remove any usage restrictions or enable functionality disabled by Fulcrum Acoustic, (c) bypass or delete any functionality or technical limitations of the Fulcrum Acoustic Materials that prevent or inhibit the unauthorized copying or use of any programs, modules, components, or functionality, or (d) utilize any equipment, device, hardware, software, service, or other means designed to do any of the foregoing. The Software is licensed to you as a single product and its components may not be separated for access, distribution, or use unless expressly permitted by Fulcrum Acoustic. You may not permit, induce, instruct, or hire any other person or third party to perform or attempt any of the actions prohibited by this Section 2.2. The prohibitions contained in this Section 2.2 will apply to the extent that applicable law allows such prohibition to be enforced. You will bear the burden of proof in demonstrating that applicable law does not allow enforcement of any such prohibition.

   2.3 Unauthorized Use. You will promptly report to Fulcrum Acoustic any unauthorized use of the Software of which you become aware and will take such further steps as may reasonably be requested by Fulcrum Acoustic to prevent unauthorized use thereof.

   2.4 Term of the Agreement. This Agreement begins on the earlier of when you click "I accept," access or use the Software, or make the Software available for use by Authorized Users, and will remain in effect until terminated in accordance with its terms.

   2.5 Termination of Agreement and Licenses.

   (a) You may terminate this Agreement at any time upon by ceasing to use the Software and removing the Software from the hardware on which the Software resides.

   (b) This Agreement will also terminate automatically and without notice to or action by either party upon your failure to comply with any terms of this Agreement or upon the termination of any other agreement between you and Fulcrum Acoustic.

   (c) This Agreement will terminate automatically and without notice to or action by either party if you become bankrupt or insolvent, make an arrangement with your creditors, go into liquidation, or cease doing business for a period of more than 30 consecutive calendar days.

   2.6 Effect of Termination. Upon termination of this Agreement, (a) all rights and licenses granted to you under this Agreement will hereunder will terminate automatically and without notice to or action by either party and you will immediately cease any further access to or use of the Software, and (b) you will promptly destroy all printed copies and fully delete all electronic copies of any Fulcrum Acoustic Materials in your or your Authorized Users' direct or indirect possession or control. As set forth in Section 15 (Survival) below, certain terms and conditions of this Agreement will survive the termination of this Agreement for any reason.

   2.7 Excluded Materials. Notwithstanding anything to the contrary in this Agreement, no license is granted (whether expressly, by implication, or otherwise) under this Agreement (and this Agreement expressly excludes any right) to any Fulcrum Acoustic materials or software that you did not acquire lawfully or that you acquired in violation of or in a manner inconsistent with this Agreement.

3. Ownership. Except for the limited license granted in Section 2.1, Fulcrum Acoustic retains all rights in and to all Fulcrum Acoustic Materials, including all versions, upgrades, updates, bug fixes, patches, new modules and modifications to any Fulcrum Acoustic Materials, any parts of any of the foregoing, and any copies of any of the foregoing (the "Fulcrum Acoustic IP"), including title, ownership, and all other proprietary or intellectual property rights in or to any of the Fulcrum Acoustic IP. The Fulcrum Acoustic IP is licensed subject to the terms of this Agreement, not sold, and this Agreement does not transfer to you any title to, or any proprietary or intellectual property rights in or to, any Fulcrum Acoustic IP, except for the limited license granted in Section 2.1. Except as expressly provided otherwise in this Agreement, the structure, organization, and code of the Fulcrum Acoustic IP are valuable trade secrets of Fulcrum Acoustic and you will keep such trade secrets confidential. The Fulcrum Acoustic IP is protected by United States laws and international treaty provisions.

4. Versions. If Fulcrum Acoustic issues an upgrade or update to the Software (a "New Version") during the term of this Agreement, then all warranties and support relating to all Software versions issued prior to the New Version (each, a "Prior Version") will cease automatically and without notice to you. Fulcrum Acoustic reserves the right to require you to show satisfactory proof that all copies of the Previous Versions have been uninstalled. Fulcrum Acoustic or an authorized third-party in connection with the Software licensed to you hereunder may provide you additional software or modules that supplements or extends the Software. Such supplemental software will be subject to the terms and conditions of this Agreement except Section 9.1 (Limited Warranty), unless otherwise specified at the time of delivery.

5. Confidential Information. The Fulcrum Acoustic Materials, Fulcrum Acoustic IP, any and all technical, product, and any other information made available to you by or on behalf of Fulcrum Acoustic under this Agreement (collectively, the "Information") is the confidential information of Fulcrum Acoustic. You will not, and you will not permit any Authorized Users to, disclose to any third party the Information or any portion thereof without the prior written consent of Fulcrum Acoustic. You will maintain the confidentiality of all Information and will not use it for any purpose other than exercising your rights to use Fulcrum Acoustic Materials in accordance with the terms and conditions of this Agreement. "Information" does not include information that you can demonstrate by contemporaneous written records was: (i) publicly available and generally known at the time of disclosure, or later became publicly available and generally known through no act or omission by you or any Authorized Users; (ii) in your possession, free of any obligation of confidentiality, before disclosure by Fulcrum Acoustic; or (iii) disclosed to you by a third party not in violation of any obligations of confidentiality to Fulcrum Acoustic or to any third party.

6. Privacy and Use of Information. You acknowledge and agree that you (and third parties acting on your behalf) may provide, and Fulcrum Acoustic (and third parties acting on behalf of Fulcrum Acoustic) may obtain, certain information and data with respect to you (including personal information) and your business in connection with this Agreement or your use of the Fulcrum Acoustic Materials and the management of Fulcrum Acoustic's relationship with you. You hereby consent to Fulcrum Acoustic maintaining, using, storing, and disclosing such information and data (including personal information, if any) in conformity with Fulcrum Acoustic policies on privacy and data protection, as such policies may be updated from time-to-time. Without limitation of the generality of the foregoing, you acknowledge and agree that: (i) Fulcrum Acoustic may from time-to-time prompt you (and third parties acting on your behalf) to provide express agreement to the terms of Fulcrum Acoustic's such policies and/or express agreement to specific uses of information and data (including personal information); (ii) Fulcrum Acoustic may provide information and data, including information and data about your use of the Fulcrum Acoustic Materials and your support requests, to Fulcrum Acoustic affiliates and other third parties in connection with the provision, maintenance, administration, or usage of the Fulcrum Acoustic Materials, or in connection with enforcement of any agreements relating to the Fulcrum Acoustic Materials; and (iii) Fulcrum Acoustic may make cross-border transfers of such information and data, including to jurisdictions with privacy or data protection laws that are less protective of you than the jurisdiction in which you are domiciled. You acknowledge and agree that such policies may be changed from time-to-time by Fulcrum Acoustic and that, effective upon posting on Fulcrum Acoustic's website or other written notice from Fulcrum Acoustic, you will be subject to such changes.

7. Connectivity. Certain licensed materials under this Agreement may allow you to access to and use of content and services that are hosted on websites maintained by Fulcrum Acoustic or by third parties. Accessing such content or services and use of the Fulcrum Acoustic Materials may cause the Software or the device on which the Software resides, without additional notice, to connect automatically to the Internet (transitorily, intermittently, or on a regular basis) and to communicate with a Fulcrum Acoustic or third-party website, for example, for purposes of providing you with additional information, features, and functionality, or to validate that the Software and/or content or services are being used as permitted under this Agreement or other applicable terms. Such connectivity to Fulcrum Acoustic websites is governed by Fulcrum Acoustic's policies on privacy and data protection described in Section 6 (Privacy and Use of Information) and this Section 7. Such connectivity to sites, networks, content, materials, products or services of third parties ("Third Party Products") is governed by the terms and conditions (including the disclaimers, notices, and limitations of liability) found on such sites or otherwise associated with the third-party content or services. Fulcrum Acoustic does not control, endorse, or accept responsibility for any Third Party Products, and any dealings between you and any third party in connection with Third Party Products, including such third party's privacy policies, use of personal information, delivery of and payment for goods and services, and any other terms associated with such dealings, are solely between you and such third party. Fulcrum Acoustic may at any time, for any reason, modify or discontinue the availability of any Third Party Products. Access to and use of certain content and services (whether of Fulcrum Acoustic or third parties) may require assent to separate terms and/or payment of additional fees.

8. Functionality Limitations. The Software is a commercial professional tool intended to be used by trained professionals only. The Software is not a substitute for your professional judgment or independent testing. Fulcrum Acoustic will not be liable in any manner whatsoever for the results obtained through use of the Software. Users of the Software are responsible for the supervision, management, and control of the Software, and the results of using the Software.

9. Limited Warranty and Disclaimers.

   9.1 Limited Warranty. THIS PARAGRAPH 9.1 ONLY APPLIES TO FULCRUM ACOUSTIC SERVER SOFTWARE. ALL OTHER FULCRUM ACOUSTIC MATERIALS ARE OFFERED WITHOUT WARRANTY OF ANY KIND AS SET FORTH IN SECTION 9.1. Fulcrum Acoustic warrants that, as of the date on which the Fulcrum Acoustic Server Software is delivered to you, and for one year thereafter (the "Warranty Period"), the Fulcrum Acoustic Server Software will substantially conform to the Documentation in effect on the date of such delivery when given normal, proper, and intended usage in compliance with this Agreement and Fulcrum Acoustic's instructions, and will provide the general features and functions described in the Documentation. In the event of a nonconformance during the Warranty Period, you agree to promptly report such nonconformance along with all information required by Fulcrum Acoustic. Fulcrum Acoustic will investigate any such reported nonconformance and will use commercially reasonable efforts to remedy such nonconformance. If Fulcrum Acoustic is unable to remedy such nonconformance within 90 days after the date Fulcrum Acoustic has received all relevant information with respect to such nonconformance from you, Fulcrum Acoustic's entire liability and your sole and exclusive remedy under this Agreement during the Warranty Period ("Limited Warranty") will be, with the exception of any statutory warranty or remedy that cannot be excluded or limited under law, at Fulcrum Acoustic's option: (i) to attempt to correct or work around errors, if any, or to provide a replacement for the Fulcrum Acoustic Server Software; or (ii) to have you return the Fulcrum Acoustic Materials, delete all copies of the Fulcrum Acoustic Materials from your systems, and refund the license fees, if any, paid by you and terminate this Agreement or the license specific to such Fulcrum Acoustic Server Software. THE LIMITED WARRANTY SET FORTH IN THIS SECTION GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE ADDITIONAL LEGAL RIGHTS UNDER LAW WHICH VARY FROM JURISDICTION TO JURISDICTION. FULCRUM ACOUSTIC DOES NOT SEEK TO LIMIT YOUR WARRANTY RIGHTS TO ANY EXTENT NOT PERMITTED BY LAW.

   9.2 Disclaimer. EXCEPT AS SET FORTH IN SECTION 9.1, THE FULCRUM ACOUSTIC MATERIALS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTY OF ANY KIND, AND YOUR USE OF OR RELIANCE UPON THE FULCRUM ACOUSTIC MATERIALS AND ANY FULCRUM ACOUSTIC OR THIRD PARTY PRODUCTS ACCESSED THEREBY IS AT YOUR SOLE RISK AND DISCRETION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FULCRUM ACOUSTIC AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS HEREBY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND GUARANTIES REGARDING THE FULCRUM ACOUSTIC MATERIALS, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHERMORE, FULCRUM ACOUSTIC AND ITS AFFILIATES, PARTNERS, SUPPLIERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE FULCRUM ACOUSTIC MATERIALS WILL MEET YOUR REQUIREMENTS; (II) THE FULCRUM ACOUSTIC MATERIALS WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, TIMELY, SECURE OR ERROR-FREE; (III) THE FULCRUM ACOUSTIC MATERIALS WILL BE COMPATIBLE OR INTEROPERABLE WITH ANY COMPUTER, MOBILE DEVICE, OPERATING SYSTEM, INTERNET BROWSER SOFTWARE, OR ANY OTHER PIECE OF HARDWARE, SOFTWARE, EQUIPMENT OR DEVICE; (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL ACCESSED OR OBTAINED BY YOU THROUGH THE FULCRUM ACOUSTIC MATERIALS WILL BE AS REPRESENTED OR MEET YOUR EXPECTATIONS; OR (V) ANY ERRORS IN THE FULCRUM ACOUSTIC MATERIALS WILL BE CORRECTED. YOU UNDERSTAND AND ACKNOWLEDGE THAT INTERNET CONGESTION AND OUTAGES, AS WELL AS MAINTENANCE, DOWNTIME, AND OTHER INTERRUPTIONS, MAY INTERFERE AT TIMES WITH YOUR ABILITY TO ACCESS OR OTHERWISE USE THE FULCRUM ACOUSTIC MATERIALS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU OR ANY AUTHORIZED USER FROM FULCRUM ACOUSTIC OR FROM THE FULCRUM ACOUSTIC MATERIALS SHALL CREATE ANY REPRESENTATION, WARRANTY OR GUARANTY. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN SECTION 9.1 (LIMITED WARRANTY), FULCRUM ACOUSTIC HAS NO OBLIGATION TO CORRECT ANY ERRORS OR OTHERWISE SUPPORT OR MAINTAIN THE FULCRUM ACOUSTIC MATERIALS.

10. Limitation of Liability. You are not entitled to receive damages from Fulcrum Acoustic for any cause relating to this Agreement, to your use of the Fulcrum Acoustic Materials, to any services provided by Fulcrum Acoustic under this Agreement, or to any services (including Third Party Products) provided by any third party in connection with your use of the Software. In addition, in no event will you be entitled to obtain any injunctive relief or otherwise enjoin, restrain, or otherwise interfere with Fulcrum Acoustic or with the distribution, operation, development, or performance of the Fulcrum Acoustic Software or any related products. IN NO EVENT WILL FULCRUM ACOUSTIC BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER ARISING OUT OF YOUR USE OF, OR INABILITY TO USE, THE FULCRUM ACOUSTIC MATERIALS. IN NO EVENT WILL FULCRUM ACOUSTIC BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF DATA, LOST PROFITS, OR LOST BUSINESS OPPORTUNITIES, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH DAMAGES ARE SOUGHT, AND EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. AS SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

11. Indemnification and Product Claims. You will indemnify, defend and hold harmless Fulcrum Acoustic and its affiliates, partners, suppliers and licensors, and each of their respective officers, directors, agents and employees (the "Indemnified Parties") from and against any claim, proceeding, loss, damage, fine, penalty, interest and expense (including reasonable fees for attorneys and other professional advisors) arising out of or in connection with the following: (i) your breach of this Agreement; (ii) your access to or use of the Fulcrum Acoustic Materials, including your use in violation of law; (iii) your negligence or willful misconduct in connection with your access to or use of the Fulcrum Acoustic Materials; or (iv) your violation of the rights of a third party, including the infringement by you of any intellectual property or misappropriation of any proprietary right or trade secret of any person or entity. These obligations will survive any termination of the Agreement.

    You (not Fulcrum Acoustic) are responsible for addressing any third party claims relating to or resulting from your use or possession of the Fulcrum Acoustic Materials, and agree to notify Fulcrum Acoustic of any third party claims relating to the Fulcrum Acoustic Materials of which you become aware. Furthermore, you hereby release Fulcrum Acoustic from any liability related to or resulting from your access to or use of the Fulcrum Acoustic Materials.

12. Export Control. The Software may contain encryption and is subject to United States export control laws and regulations and may be subject to export or import regulations in other countries, including controls on encryption products. You agree that you will not export, re-export or transfer the Fulcrum Acoustic Materials in violation of any applicable laws or regulations of the United States or the country where you legally obtained it. You are responsible for obtaining any licenses to export, re-export, transfer or import the Fulcrum Acoustic Materials. In addition to the above, the Fulcrum Acoustic Materials may not be used by, or exported or re-exported to: (i) any U.S. or EU sanctioned or embargoed country, or to nationals or residents of such countries; or (ii) any person located in any country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; or (iii) any person listed on any U.S. Government list of prohibited or restricted parties including the Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List, as published and revised from time to time; or (iv) any party engaged in nuclear, chemical/biological weapons or missile proliferation activities, unless authorized by U.S. and local (as required) law or regulations. You hereby represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

13. U.S. Government Terms and Conditions. The terms and conditions of this Section 13 only apply if the Software is provided pursuant to a U.S. governmental entity placing orders under a GSA Schedule 70 contract with Fulcrum Acoustic (the "GSA Contract"). To the extent this Section 13 conflicts with the other terms and conditions of this Agreement, the terms and conditions of this Section 13 will prevail.

    (a) Notwithstanding Section 2.4 (Term of the Agreement), the commencement of the term of this Agreement will be governed by the GSA Contract to which this Agreement is made a part.

    (b) Fees for attorneys and other professional advisors will be excluded from the types of losses recoverable under Section 11 (Indemnification and Product Claims).

    (c) To the extent that clause (iv) of Section 11 (Indemnification and Product Claims) violates 31 USC 1341 or 41 USC 6301, such clause is omitted from this Agreement.

    (d) Notwithstanding Section 16.4, this Agreement shall be interpreted and construed in accordance with the United States Federal Law including the Contract Disputes Act of 1978 as amended (41 U.S.C. secs. 7101-7109).

    (e) Nothing in Section 2.5(b) will be deemed to limit any process due prior to termination by Fulcrum Acoustic for breach by applicable governmental contracting regulations (such as FAR 52.233-1).

    (f) Section 10 (Limitation of Liability) shall not apply to the Government to the extent that it is impermissible under applicable law. Further, Section 10 shall not prohibit the Government from recovering for fraud or crimes arising out of or related to this Agreement (1) under any federal fraud statute, including the False Claims Act, 31 U.S.C. §§ 3729-3733; (2) for any other matter for which liability cannot be excluded by law or (3) express remedies provided under any FAR, GSAR or Schedule 70 solicitation clauses incorporated into the GSA Schedule 70 contract.

    (g) The Software was developed entirely at private expense and no part of the Software was first produced in the performance of a Government contract. Therefore the Software is "commercial computer software" as defined at 48 C.F.R. sec. 12.212.

14. Software Suggestions. Fulcrum Acoustic welcomes suggestions for enhancing the Software and any accompanying Documentation that may result in computer programs, reports, presentations, documents, ideas or inventions relating or useful to Fulcrum Acoustic's business. All title, ownership rights, and intellectual property rights concerning such suggestions shall become the exclusive property of Fulcrum Acoustic and may be used for its business purposes in its sole discretion without any payment or accounting to you.

15. Survival. Section 2.6 (Effect of Termination), Section 2.7 (Excluded Materials), Section 3 (Ownership), Section 5 (Confidential Information), Section 6 (Privacy and Use of Information), Section 8 (Functionality Limitations), Section 9.2 (Disclaimer), Section 10 (Limitation of Liability), Section 11 (Indemnification and Product Claims), Section 12 (Export Control), Section 13 (U.S. Government Terms and Conditions), Section 14 (Software Suggestions), and Section 16 (Miscellaneous) will survive and termination for any reason or expiration of this Agreement.

16. Miscellaneous.

    16.1 Entire Agreement. This Agreement constitutes the entire agreement between you and Fulcrum Acoustic concerning the subject matter hereof, and no promise, inducement, or agreement not contained in this Agreement has been made to another party. Without limiting the foregoing, you acknowledge and agree that when you acquire a license of the Fulcrum Acoustic Materials, your acquisition is neither contingent on the delivery of any future features or functionality nor subject to any public or other comments (oral, written, or otherwise) made by Fulcrum Acoustic regarding future features or functionality.

    16.2 Amendment and Waiver. This Agreement may be amended only by a writing signed by both parties. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof.

    16.3 Severability. If any provision in this Agreement should be held illegal or unenforceable by a court of competent jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect.

    16.4 Governing Law. This Agreement and any disputes arising out of or in connection with this Agreement will in all respects be governed by and be construed in accordance with the laws of the State of Massachusetts, United States of America, without regard to its conflict of laws provisions and excluding the UN Convention on Contracts for the International Sale of Goods. Each party waives any right to jury trial in connection with any action or litigation in any way arising out of or related to the Agreement.

    16.5 No Assignment. This Agreement is personal to you (or any entity on whose behalf you have been authorized to enter into this Agreement). Neither you nor any such entity may assign this Agreement, or any of the rights granted by Fulcrum Acoustic hereunder, in whole or in part, without the prior written consent of Fulcrum Acoustic. Any attempt to do so will be void and will immediately and automatically terminate this Agreement.

    16.6 Third Party Beneficiaries. Nothing contained in this Agreement is intended or shall be construed to confer upon any person (other than the parties hereto) any rights, benefits or remedies of any kind or character, or to create any obligations or liabilities of a party to any such person.

    16.7 Force Majeure. If the performance of Fulcrum Acoustic under this Agreement is prevented, hindered, or otherwise made impractical by reason of an act of God, flood, strike, war, acts of government, terrorism, insurrection, city-wide black-out, general labor strike, pandemic, quarantine conditions, or any other casualty or cause beyond the control of Fulcrum Acoustic, then Fulcrum Acoustic will be excused from its performance to the extent and so long as it is prevented, hindered, or delayed by such events.

    16.8 Headings; Construction. The headings in this Agreement are for convenience only and in no way limit or affect the terms or conditions of this Agreement. In this Agreement, the words "include," "includes" and "including" shall be deemed to be followed by the phrase "without limitation."