IPP and IPM - Terms and Conditions | Copyright Clearance Center

Ixxus Software License & Support Agreement

These Terms and Conditions together with the “Ixxus Software License & Support – Order Form” which references these Terms and Conditions (the “Order Form”) is a legal agreement (the “License”) between the Ixxus entity identified on the applicable Order Form (“Ixxus”) and the other company or organization detailed in the Order Form (the “Licensee”) for the use of the Ixxus Publishing Platform and/or Ixxus Publishing Modules as described in the Order Form in object code form, and which may contain or incorporate software and/or other materials which are owned and/or supplied by third parties (the “Software”), as well as the accompanying electronic user documentation which is published on Ixxus’ website or otherwise provided by Ixxus from time to time (the “Documentation”).

Ixxus licenses use of the Software and Documentation to the Licensee on the basis of the terms and conditions of this License only, which shall apply to the exclusion of all other terms and conditions which the Licensee may seek to impose or reference. Ixxus does not sell the Software or Documentation to the Licensee. As between the parties, Ixxus or its licensors shall at all times retain all right, title and interest in and to the Software and Documentation.

Grant and scope of license
1. In consideration of the Licensee agreeing to abide by the terms of this License and agreeing to pay the license fees detailed in Clause 3, Ixxus hereby grants to the Licensee a non-exclusive, non-transferable and non-assignable license to use the Software and the Documentation for the Term of, and pursuant to the terms of this License.
2. Subject to any limitations on the applicable Order Form, the Licensee may:
  1. install and run the Software; and
  2. permit individuals employed or contracted by Licensee or otherwise under Licensee’s control (“Licensed Users”) to access and use the Software for Licensee’s own internal business purposes; and
  3. where the Software is installed in an environment at the Licensee’s premises or under its control (and provided the Licensee complies with the provisions in Clause 2):
    1. make a copy of the Software solely for back-up or operational security purposes which are necessary for its lawful use; and
    2. modify the Software solely to the extent necessary for Customer’s lawful use; and
  4. use any Documentation in support of the use of the Software permitted under this Clause 1.2 and make a reasonable number of copies of the Documentation as are necessary for its lawful use.
3. The rights to use any Open Source Software (“OSS”) (as such term is defined by the as defined by the Open Source Initiative (http://opensource.org) or the Free Software Foundation (http://www.fsf.org) integrated in or bundled with the Software are subject to, and as set forth in, the applicable third party open-source license.
Restrictions
1. The use which the Licensee is permitted to make of the Software and Documentation may be subject to specific restrictions and usage requirements which are detailed in the Order Form (“Specific Restrictions”) and the Licensee undertakes and agrees to comply with and abide by any such Specific Restrictions.
2. In addition to the Specific Restrictions referred to above, the Licensee agrees to abide by the general restrictions detailed in this Clause 2.2. Accordingly, except as expressly set out in this License or as permitted by any applicable laws, the Licensee undertakes:
  1. not to copy the Software or Documentation except where such copying is incidental to normal use of the Software as permitted under this License or where it is necessary for the purpose of back-up or operational security as permitted under Clause 1.2.3;
  2. not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software or Documentation;
  3. not to duplicate, transcribe, translate, make alterations to, modifications of, or reuse or transfer any portion of the visual design or other elements of the whole or any part of the Software, nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs;
  4. not to disassemble, de-compile, reverse engineer, reverse-assemble or disassemble, unlock or otherwise attempt to discover the source code or underlying algorithimms, or create derivative works based on the whole or any part of the Software nor attempt to do any such things except to the extent that (by virtue of applicable laws) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by the Licensee during such activities: (i) is used only for the purpose of achieving inter-operability of the Software with another software program; (ii) is not disclosed or communicated without Ixxus’ prior written consent to any third party to whom it is not necessary to disclose or communicate it;
  5. not to use the Software in any manner that violates any applicable law or regulation (including but not limited to where Licensee is required to obtain permission or authorizations to permit Ixxus to perform its obligations hereunder);
  6. not to use the Software for any website, internet or online service accessible by third parties, or as part of a service bureau or otherwise on behalf of a third party;
  7. to implement and maintain reasonable and appropriate controls to keep any and all copies of the Software which are in the possession of the Licensee or under its control secure and to maintain accurate and up-to-date records of the number and locations of all such copies of the Software;
  8. to supervise and control all use of the Software by Licensed Users and ensure that the Software is used by Licensed Users in accordance with the terms of this License;
  9. to include Ixxus’ and its licensors’ copyright notices and other notices on all entire and partial copies of the Software in any form;
  10. not to provide, or otherwise make available, the Software in any form, in whole or in part (including, but not limited to, program listings, object and source program listings, object code and source code) to any person other than the Licensed Users, without prior written consent of Ixxus; and
  11. to promptly notify Ixxus in writing of any breach of any of the foregoing.
License and Support Fees
1. The Licensee shall pay license fees (which shall be one-time for perpetual licenses and annual or term-based for term-based licenses) to use the Software (“License Fees”) and annual or term-based support fees for the provision of Support and Maintenance Services (“Support Fees”), in each case as detailed in the Order Form (collectively, the “License and Support Fees”). All License and Support Fees shall be paid directly to Ixxus.
2. Unless otherwise stated in the Order Form or agreed between the parties in writing, the License Fees and Support Fees shall be paid on signature of the Order Form and (except in the case of License Fees for perpetual licenses) at the beginning of each Renewal Term. For the avoidance of doubt, in the event that the Licensee fails to pay the applicable License Fee and Support Fee due in respect of any Renewal Term, the Licensee shall cease to have any further right to use the Software or the Support and Maintenance Services, as applicable.
3. If Licensee elects not to renew Support and Maintenance Services, Licensee will be charged a reinstatement fee calculated as follows: if Support and Maintenance Services expired or were otherwise terminated, then the reinstatement fee is 125% of the last annual Support Fees paid by Customer to Ixxus prorated from the date of reinstatement back to the date such Support and Maintenance Services lapsed.
4. All sums payable under this License are exclusive of VAT or any other sales taxes, which (if applicable) the Licensee agrees to pay in addition as set forth on the relevant invoice.
5. If the Licensee fails to pay any amount payable by it under this License Ixxus may charge the Licensee interest on the overdue amount (payable by the Licensee immediately on demand from the due date up to the date of actual payment, after as well as before judgment), at the rate of 12% annually. Such interest shall accrue on a daily basis and be compounded quarterly.
6. If the Licensee fails to pay any amount payable by it under this License by the due date for payment then (without prejudice to any other rights and remedies which may be available to Ixxus) Ixxus shall additionally be entitled to withhold performance of the Support and Maintenance Services and/ or any other services which Ixxus is supplying to the Licensee whether pursuant to this License or otherwise, until the outstanding sums are paid in full.
7. Ixxus shall be entitled to increase the License Fees and, if applicable, the Support Fees due under this License at the end of the Initial Term of this License or any Renewal Term, provided that it gives the Licensee at least thirty (30) days prior written notice.
8. If the Licensee elects to renew Support and Maintenance Services under this Agreement after having previously discontinued, Licensee will be charged a reinstatement fee calculated as follows: if Support and Maintenance Services have expired or have been otherwise terminated, then the reinstatement fee will be 125% of the last annual support fees paid by Customer to Ixxus prorated from the date of reinstatement back to the date such Support Services lapsed.
Support and Maintenance Services
1. Provided that the Licensee has paid all applicable License and Support Fees due under this License by the due date for payment and has complied with the terms and conditions of this License, Ixxus agrees to provide the Licensee with support and maintenance services in relation to the Software (“Support and Maintenance Services”) during the Initial Term and any Renewal Terms.
2. Support and Maintenance Services shall comprise the following:
  1. the provision of such maintenance releases, error corrections, updates, modifications, or enhancements to the Software which Ixxus makes generally available to its customers from time to time, provided, however, that such updates shall exclude new products or functionality for which Ixxus generally charges a separate or additional license fee; and
  2. technical support in relation to the Software via Ixxus Support Portal.
3. Ixxus shall use reasonable endeavours to ensure that the Support and Maintenance services are provided in accordance with the Ixxus Support and Maintenance terms and conditions published by Ixxus at https://www.ixxus.com/misc/sow-terms-conditions-support/ (“Support SLA”) as that may be updated or modified by Ixxus from time to time.
4. The Licensee acknowledges and agrees that Support and Maintenance Services are subject to any limitations applicable to the level of Support and Maintenance which the Licensee has purchased. Details of such limitations will be set out in the Order Form and/ or Support SLA.
5. Ixxus may (in its absolute discretion) agree to provide additional professional services to the Licensee in relation to the Software (“Professional Services”) which may include (without limitation) the provision of any development, implementation, integration and training services. Unless agreed otherwise between the parties in writing, all such Professional Services shall be provided under the terms of a separate Services Agreement to be concluded between the parties and Ixxus shall charge for any such Professional Services at such price as the parties may agree or (in the absence of such agreement) on a time and materials basis in accordance with Ixxus’ standard rates in force from time to time.
Intellectual property rights
1. The Licensee acknowledges that all intellectual property rights in the Software and the Documentation throughout the world belongs to Ixxus and its licensors, that rights in the Software are licensed (not sold) to the Licensee, and that the Licensee has no rights in, or to, the Software or the Documentation other than the right to use them in accordance with the terms of this License.
2. Unless otherwise agreed in writing any intellectual property rights arising from the provision of the Support and Maintenance Services or any other services supplied pursuant to this License shall belong to Ixxus or (where applicable) its licensors.
3. Except to the extent necessary for its lawful use of the Software under this License, the Licensee acknowledges that it has no right to have access to the Software in source code form or in unlocked coding or with comments.
4. The integrity of this Software may be protected by technical protection measures (TPM) so that the intellectual property rights, including copyright, in the Software is not misappropriated. The Licensee must not attempt in any way to remove or circumvent any such TPM, nor to apply, manufacture for sale, hire, import, distribute, sell, nor let, offer, advertise or expose for sale or hire, nor have in its possession for private or commercial purposes, any means whose sole intended purpose is to facilitate the unauthorised removal or circumvention of such TPM.
Limited warranty and indemnity
1. Ixxus warrants that the Software will, when properly used on or in accordance with the system requirements provided by Ixxus, perform substantially in accordance with the functions described in the Documentation for a period of thirty (30) days from the date of installation of the Software (the “Warranty Period”). If, within the Warranty Period, the Licensee notifies Ixxus in writing of any defect or fault in the Software as a result of which it fails to perform substantially in accordance with the Documentation, Ixxus will, at its sole option, either (i) repair or replace the Software, provided that the Licensee makes available all the information that may be necessary to help Ixxus to remedy the defect or fault; or (ii) refund any License and Support Fees paid by the Licensee in which event this License will terminate.
2. Ixxus warrants that it will perform the Support and Maintenance Services and any other services performed pursuant to this License, using reasonable skill and care. If, within a reasonable period following the performance of any such services, the Licensee notifies Ixxus in writing of any breach of the warranty contained in this Clause 6.2, Ixxus will, at its sole option, either remedy such breach and/ or re-perform the Services in question, provided that the Licensee makes available all the information that may be necessary to help Ixxus do the same.
3. Ixxus warrants that it has all necessary rights to grant the license to the Software issued hereunder. The Licensee’s sole remedy for breach of this warranty shall be the indemnity in clause 6.4.
4. Ixxus hereby indemnifies and agrees to defend and hold harmless Licensee against any third party claim, suit, or proceeding alleging that the Software infringes any copyright, trade secret, trade or service mark, or patent issued in the jurisdiction of the Ixxus entity that is party hereto (“IP Right”); provided, however, Licensee will provide prompt written notice of the applicable claim to Ixxus and cooperate in Ixxus’ defense, as reasonably requested by Ixxus and at Ixxus’ expense. Ixxus will have sole control of the defense and settlement of the applicable matter. Ixxus may, at its expense and sole discretion, attempt to resolve any indemnified claim by: (a) modifying the Software to avoid the alleged infringement; (b) obtaining a license to permit Licensee’s use of the Software as contemplated by this License; or (c) in the event that Ixxus determines the remedies provided in subsections (a) and (b) above are not commercially feasible, terminating the rights set forth in this License and giving Customer a refund for any pre-paid, unused fees for the remainder of the then-effective Term. Licensee will cooperate fully with Ixxus in the implementation of any above-described resolution. Ixxus will have no liability under this Clause 6.4 and shall not be obliged to defend and hold harmless to the extent any claim results from (a) the unauthorised use or modification of the Software, (b) the combination of the Software with other software, equipment, products, data or business processes not supplied or approved by Ixxus, or (c) the Licensee’s use of a non-current release of the Software where Ixxus has made a new (non-infringing) version of the Software available to Licensee at no additional cost which Licensee has not accepted.
5. This Clause 6 sets out the Licensee’s exclusive remedy and Ixxus’ entire liability for any breach of the warranties contained herein.
6. The warranties contained in Clause 6.1 and 6.2 only apply to defects and errors in the Software or service outputs which can be demonstrated or reproduced, and do not apply; (i) if the defect or fault in the Software or services results from the Licensee or any third party having amended the Software or service outputs; (ii) to defects or errors in Software or services which have been used in violation of this License or other than in accordance with the Documentation; or (iii) any faults or errors in the Software or services which are caused by any software or hardware product other than the Software.
7. Licensee is solely responsible for all software, data, technology, content and other materials used or provided by or on behalf of Licensee in connection with the Software provided hereunder, and warrants that it has and shall maintain during the Term hereof all necessary rights and licenses to make such uses and to authorize Ixxus to perform its obligations hereunder (including the storage and handling thereof). Licensee is also solely responsible for any third party hardware, software or services provided by or on behalf of Licensee which are integrated or otherwise used with the Software provided hereunder.
8. Licensee hereby indemnifies and agrees to defend and hold harmless Ixxus, its affiliates, and their respective officers, directors, and employees against any third party claim, suit, or proceeding based on or arising from (a) matters which are the responsibility of Licensee under Clause 6.7 above or (b) the acts or omissions of any user who obtains access to the Software through Licensee or Licensee’s systems provided, however, Ixxus will provide prompt written notice of the applicable claim to Licensee and cooperate in Licensee’s defense, as reasonably requested by Licensee and at Licensee’s expense.
9. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS CLAUSE 6, IXXUS MAKES NO OTHER WARRANTIES UNDER THIS LICENSE (INCLUDING, WITHOUT LIMITATION, ANY ORDER FORM), AND ALL WARRANTIES AND CONDITIONS AND OTHER TERMS WHICH MAY BE IMPLIED BY STATUTE OR COMMON LAW, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. IXXUS DOES NOT REPRESENT THAT THE SOFTWARE WILL BE ERROR FREE OR MEET LICENSEE’S REQUIREMENTS.
Limitation of liability
1. The Licensee acknowledges that the Software has not been developed to meet the Licensee’s individual requirements, and that it is therefore the Licensee’s responsibility to ensure that the facilities and functions of the Software as described in the Documentation meet the Licensee’s requirements.
2. To the maximum extent permitted by law, neither Ixxus nor its licensors shall under any circumstances be liable to the Licensee, whether in contract, tort (including, without limitation, negligence), breach of statutory duty, or otherwise, arising under or in connection with the License for: (i) loss of profits, sales, business, or revenue; (ii) business interruption; (iii) loss of anticipated savings; (iv) loss or corruption of data or information; (v) loss of business opportunity, goodwill or reputation; or (vi) any indirect, special, or consequential loss or damage, even if Ixxus has been advised of the possibility of such damages. Neither Ixxus nor its licensors shall be liable to Licensee under this License to the extent any claim results from or is related to (a) a failure by Licensee to comply with the minimum system requirements of any Software as provided by Ixxus; (b) modifications or alterations to any Software or the supporting data or systems made by the Licensee; (c) use of any Software by Licensee other than as contemplated herein; (d) the combination of any Software with other software, equipment, products, data or business processes not supplied or approved by Ixxus; (e) Customer’s use of a non-current release of any Software where Ixxus has made a new (non-infringing) version of the Software available to Licensee at no additional cost which Customer has not accepted; (f) any products or services not provided by Ixxus, including without limitation any content or materials supplied by the Licensee, content owners, end users or other third parties; or (g) the negligence or willful misconduct of Licensee.
3. Subject to Clause 7.4, Ixxus’ maximum aggregate liability under or in connection with this License whether in contract, tort (including negligence) or otherwise, shall in all circumstances be limited to a sum equal to the License and Support Fees actually paid by the Licensee to Ixxus under this License during the twelve months preceding the incident that gave rise to the claim.
4. Nothing in this License shall limit or exclude Ixxus’ liability for: (i) death or personal injury resulting from its negligence; (ii) fraud or fraudulent misrepresentation; or (iii) any other liability that cannot be excluded or limited by applicable law.
5. This License sets out the full extent of Ixxus’ obligations and liabilities in respect of the supply of the Software and Documentation and Support and Maintenance Services.
Term and Termination
1. Unless otherwise agreed in writing between the parties, this License shall commence or be deemed to have commenced on the earlier of (i) the date that the Order Form has been signed by both parties; or (ii) the date on which the Software is installed (the “Commencement Date”).
2. Following the Commencement Date (i) this License shall continue for the initial term stipulated in the Order Form (the “Initial Term”) and shall renew automatically at the end of the Initial Term for further consecutive periods of one (1) year (each a “Renewal Term” and together with the Initial Term, the “Term”) unless and until terminated in accordance with the provisions of this Clause 8 or any other provision of this License, and (ii) perpetual licenses granted hereunder (as stipulated on the Order Form) shall continue unless and until terminated in accordance with the provisions of this Clause 8 or as provided in Clause 6.1 or Clause 8.4.
3. Either party may terminate the Support Services for convenience at any time by giving the other not less than sixty (60) days prior written notice terminating the Support Services with effect from the end of the Initial Term or any Renewal Term.
4. Ixxus may terminate this License immediately by written notice to the Licensee:
  1. if the Licensee fails to pay the License Fee or any other sum due under this License by the due date for payment; or
  2. if the Licensee commits a material or persistent breach of this License which it fails to remedy (if remediable) within 30 days after the service of written notice requiring the Licensee to do so; or
  3. if the Licensee becomes insolvent, or if an order is made or a resolution is passed for the winding up of the Licensee (other than voluntarily for the purpose of solvent amalgamation or reconstruction), or if an administrator, administrative receiver or receiver is appointed in respect of the whole or any part of the Licensee’s assets or business, or if the Licensee makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt.
5. Upon termination or expiry of the licenses granted hereunder for any reason:
  1. all rights granted to the Licensee under this License shall cease and the Licensee must cease all activities authorised by this License; and
  2. the Licensee must immediately pay to Ixxus any sums due to the Ixxus under this License; and
  3. the Licensee must immediately delete or remove the Software from all computer equipment in its possession or under its control and immediately destroy or return to Ixxus (at Ixxus’ option) all copies of the Software and Documentation then in the Licensee’s possession, custody or control and, if requested at any time, certify to Ixxus that the Licensee has done so.
Confidentiality
1. Each party shall, whilst this License is in force and thereafter, keep confidential, and shall not use for its own purposes nor without the prior written consent of the other disclose to any third party, any information of a confidential nature which may become known to such party from the other party and which relates to the other, unless such information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this License, or subsequently comes lawfully into the possession of such party from a third party.
2. The Licensee acknowledges and agrees that the Software and Documentation shall be treated as confidential and shall only be disclosed by the Licensee to those Licensed Users who have a reasonable need to use the Software and Documentation for the purpose of this License. The Licensee shall not (and shall procure that its Licensed Users shall not) (i) use the Software and Documentation other than for the purposes detailed in this License, or (ii) disclose the Software and Documentation to any third party without Ixxus’ prior written consent.
3. Notwithstanding any provision herein to the contrary, Confidential Information may be disclosed by either party as required to comply with applicable laws, regulations, subpoenas or court orders. Where not prohibited by law, the recipient will provide reasonable prior written notice to the discloser to permit the discloser to seek a protective order and will cooperate in discloser’s activities under this Section 9.3, at discloser’s expense. Recipient agrees that it will disclose only that information that is reasonably necessary to meet the applicable legal order or requirement.
4. Each party will maintain appropriate administrative, technical and physical security measures designed to protect the other’s Confidential Information against unauthorized access, disclosure and loss. Each party will comply with applicable data protection and privacy laws and regulations in the jurisdiction of the relevant entity that is party hereto. Where under applicable data protection or privacy laws Ixxus incurs any liability (including joint or contributory liability), damages, claims or expenses (other than for damage caused by processing to the extent Ixxus has not complied with applicable laws specifically directed to data processors or to the extent it has acted contrary to lawful instructions of the Licensee under any relevant Order Form), Licensee shall indemnify Ixxus against all such costs liability, damages, claims or expenses. Licensee acknowledges and agrees to provide only test data for any use of the Software for testing or evaluation purposes or otherwise outside Licensee’s production environment, and that such test data shall not contain any personally identifying information. Subject to the confidentiality obligations set forth in Sections 9.1 and 9.2 above, Ixxus shall have no responsibility or liability for the use, loss or destruction of any data provided by Licensee for such purposes.
5. Notwithstanding Clause 9.1 above, the Licensee agrees that Ixxus may use the Licensee name and logo in connection with the marketing and promotion of the Software.
Under-licensing
1. In the event that the Licensee uses the Software in any way which exceeds the scope of the permissions granted under this License, including (without limitation) by exceeding any Specific Restrictions detailed in the Order Form, Ixxus may (in its sole discretion and without prejudice to any other rights or remedies which may be available to Ixxus) notify the Licensee and give the Licensee the opportunity to purchase additional licenses to support its use of the Software.
2. In the event that Licensee fails or declines to purchase additional licenses which in the reasonable opinion of Ixxus are required to support the Licensee’s use of the Software within 30 days of Ixxus’ notice pursuant to Clause 10.1 above, then (in its sole its sole discretion and without prejudice to any other rights or remedies which may be available to Ixxus) Ixxus reserves the right to charge the Licensee for such additional licenses.
Notices
1. Notices of termination, cancellation or breach and any other notices under this Agreement (other than routine, in-the-course-of-business communications) will be effective immediately upon delivery by hand or confirmed fax or by electronic mail, or on the fifth business day after mailing, but only if addressed to the address and contact person set forth on the applicable Order Form.
Force Majeure
1. Neither party shall in any circumstances be in breach of this License nor liable for delay in performing, or failure to perform, any of its obligations under this License if such delay or failure results from events, circumstances or causes beyond its reasonable control, and in such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that either party may terminate this Agreement in its entirety or the remaining Services under an Order Form in the event such force majeure event delays or prevents performance by the other party for a period of sixty (60) days or more..
General
1. Ixxus may transfer its rights and obligations under this License but this will not affect the Licensee’s rights under this License. The Licensee may only transfer its rights or obligations under this License to another person if Ixxus agrees in writing.
2. This License and any document expressly referred to in it constitutes the entire agreement between the parties. The Licensee acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Ixxus which is not set out in this License or any document expressly referred to in it.
3. If Ixxus fails to insist that the Licensee perform any of its obligations under this License, or Ixxus does not enforce its rights against the License, or if Ixxus delays in doing so, that will not mean that Ixxus has waived its rights against the Licensee and will not mean that the Licensee does not have to comply with those obligations. If Ixxus does waive a default by the Licensee, Ixxus will only do so in writing, and that will not mean that Ixxus will automatically waive any later default by the Licensee or any other default not expressly so waived in writing.
4. Each of the provisions of this License operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.
5. To the extent applicable, each party agrees to comply with all applicable regulations with respect to the import and export of the Software, including without limitation, UK strategic export control lists, the Export Control Act 2002 and the Export Control Order 2008, and applicable laws and regulations of the United States Department of Commerce and with the United States Export Administration Act, as amended from time to time, and with all applicable laws and regulations of other jurisdictions with respect to the export and import of the Software.
6. Nothing contained in this License shall be construed as creating any agency, partnership, or other form of joint enterprise between the parties. The relationship between the parties shall be that of independent contractors. Neither party has the right to assume or create any obligation or responsibility on behalf of the other.
7. This License is entered into solely between, and may be enforced only by, Ixxus and Licensee. This License will not be deemed to create any rights in favor of or obligations as to any third party.
8. The parties agree that a material breach of the License adversely affecting Ixxus’s or its licensors’ proprietary rights in the Software would cause irreparable injury for which monetary damages would not be an adequate remedy. In the event of such breach, Ixxus shall be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law.
9. Governing law shall be determined by jurisdiction of incorporation of the Ixxus contracting entity:
  1. if the party contracting for Ixxus (as set forth in the applicable Order Form) is incorporated in the United Kingdom, then (i) this License, its subject matter and its formation (and any non-contractual disputes or claims) are governed by English law, and (ii) the parties both agree to the exclusive jurisdiction of the courts of England and Wales.
  2. if the party contracting for Ixxus (as set forth in the applicable Order Form) is incorporated in the United States of America, then (i) this License, its subject matter and its formation (and any non-contractual disputes or claims) are governed by the laws of the Commonwealth of Massachusetts, and (ii) the parties both agree to the exclusive jurisdiction of the courts of Boston, Massachusetts.
  3. Notwithstanding the foregoing, either party may seek equitable, injunctive or declaratory relief to enforce any of its intellectual property rights or rights in the Confidential Information in any court of appropriate jurisdiction.