This Agreement is between Elluminate (defined below) and "you" (namely, the customer listed on the accepted Sales Order- Acknowledgement applicable to the use of the Elluminate software and services described therein). By using the ASP Services or using or installing the Software, you are acknowledging and confirming your agreement to all of the terms and conditions of the Sale Order – Acknowledgment and this Elluminate License Agreement (which is expressly incorporated by reference into, and forms part of, the Sales Order – Acknowledgement). If you do not agree to any of these terms and conditions, then do not use the ASP Services or use or install the Software.
You agree that this Agreement is like any written negotiated agreement signed by you, and you agree to be bound by, and fully comply with, its terms. You represent and warrant that you have all necessary right, power and authority to enter into this Agreement and to perform and otherwise discharge all of your obligations hereunder and that your use of the ASP Services and the Software does not and will not violate any applicable laws (including, for greater certainty, the export control laws of the United States of America).
If you are residing in a jurisdiction where it is forbidden by law to offer or use software for internet telephony, you may not enter into this Agreement and you may not download, install or use the Software or use the ASP Services. By using the ASP Services or using or installing the Software you are explicitly stating that you have verified in your own jurisdiction if your use of the ASP Services and the Software is allowed. Your access to the ASP Services, Software and/or this Agreement may be terminated without warning, if Elluminate reasonably believes that your use of the ASP Services or the Software is not permitted in your jurisdiction.
You acknowledge and agree that you are only being granted a license to use the Software, ASP Services and Documentation specified in the Sales Order – Acknowledgement for the period specified therein and that, for greater certainty, such license shall not be construed as to grant to you the right to use any other software, services or documentation of Elluminate or its suppliers, or to use or exploit the Software, ASP Services and Documentation in any manner other than as expressly permitted by this Agreement and specified in the Sales Order – Acknowledgement.
1.1 The following terms shall have the following meanings when used in this Agreement: "Agreement" means the accepted Sales Order – Acknowledgement and this Elluminate License Agreement, together with each of the schedules incorporated by reference therein; "ASP Services" shall mean those services, as may be amended from time to time, provided by Elluminate in respect of the hosting of, and access via the Internet to, the Software for the purpose of permitting you and your Authorized Users to use the Software in the manner as more particularly set out herein (for greater certainty, ASP Services are optional and are only provided when indicated on the Sales Order - Acknowledgement); "Authorized Users" means those individuals who are authorized by you to use the ASP Services, Software or Documentation, from time to time, in the manner as more particularly set out herein; "Documentation" shall mean all manuals, documentation and other related materials, or any portion thereof, pertaining to the ASP Services or Software provided or made available by Elluminate to you in conjunction with the Software or ASP Services, and shall include any abridgement or condensed form of such documentation, and any other work derived therefrom; "Effective Date" shall mean the date on which you indicated your acceptance of this Agreement by executing and returning the Sales Order – Acknowledgement to Elluminate; "Elluminate" means Elluminate USA, Inc., a Delaware corporation, if you are in the United States of America when this Agreement is entered into and means Elluminate Inc., a Canada corporation, if you are in any other country than the United States of America when this Agreement is entered into. "Licensee Content" shall mean all items supplied by you or your Authorized Users for inclusion in, use in association with, or uploading to the ASP Services or Software, including all program, data, or other software files, regardless of format, documents, text, pictures, photographs, graphics, video, animation, and sound recordings; "Sales Order – Acknowledgement" means the accepted Sales Order-Acknowledgement applicable to your use of the Elluminate software and services described therein; and "Software" shall mean the computer programs specified in the Sales Order - Acknowledgment and all related files and Documentation, or any portion thereof, as may be amended from time to time and provided or made available by Elluminate to you or your Authorized Users under the terms of this Agreement.
GRANT OF RIGHTS
2.1 Elluminate hereby grants, and you hereby accept, subject to the terms and conditions of this Agreement, and subject to the limits set forth in the Sales Order – Acknowledgement:
(i) where ASP Services are specified in the Sales Order – Acknowledgement, a non-exclusive and non-assignable license to use the ASP Services, Software, and Documentation to facilitate the conduct of your classes, training sessions, seminars and other meetings;
(ii) where a perpetual server license is specified in the Sales Oder – Acknowledgement, a non-exclusive and non-assignable single-server license to use the Software and Documentation on a single server to facilitate the conduct of your classes, training sessions, seminars and other meetings;
(iii) where a term license is specified in the Sales Order – Acknowledgement, a non-exclusive and non-assignable license to use the Software and Documentation for the term specified in the Sales Order – Acknowledgement to facilitate the conduct of your classes, training sessions, seminars and other meetings.
2.2 You may (subject to, and only to the extent of, the license rights granted to you in Section 2.1 above) permit your Authorized Users to use the Software, ASP Services and/or Documentation for such purpose. You shall be fully responsible for your Authorized Users' compliance with this Agreement in such use.
2.3 You may provide access to, or copies of, the Documentation to your Authorized Users as necessary for, and in conjunction with, your authorized use of the Software and/or ASP Services, and may abridge or condense the Documentation in connection therewith, provided that the copyright to any derivative work shall belong to Elluminate and you shall reproduce with such copy or work any trade-mark, copyright and other notices, or any other indicia of ownership contained in, or associated with, the Documentation.
2.4 You shall not sublicense, lend or lease the Software, ASP Services or Documentation, or otherwise make the Software, ASP Services or Documentation available, to any third party. You shall not permit the Software, ASP Services or Documentation to be subject to any timesharing, service bureau, subscription service or rental activities.
2.5 You shall not share information about the Software, ASP Services or Documentation with any third party without the written consent of Elluminate.
2.6 You acknowledge and agree that there are no limits to the number of licenses or rights that Elluminate may grant to third parties in respect of the Software, ASP Services or Documentation.
2.7 You shall not, directly or indirectly, send, submit, post, receive or otherwise facilitate, or in anyway use, or permit to be used, the Software, ASP Services or Documentation, to send, submit, post, receive or otherwise facilitate the transmission of any materials that are abusive, obscene, profane, sexually explicit, threatening, or materials containing blatant expressions of bigotry, racism or hate. You shall comply with all applicable laws (including, but not limited to export/import laws and laws relating to privacy, obscenity, copyright, trademark, confidential information, trade secret, libel, slander or defamation). You acknowledge and agree that you shall be responsible and liable for all uses made by you or your Authorized Users of the Software, ASP Services or Documentation. Notwithstanding any other provision in this Agreement, Elluminate may terminate this Agreement, or any portion of the licenses granted herein, immediately, without notice, if it is determined that you or your Authorized Users have failed to comply with any applicable laws.
3.1 You agree that title to and ownership of the Software (including all source code), ASP Services and Documentation and any modifications made thereto and all intellectual property rights therein shall at all times remain with Elluminate and/or its suppliers.
3.2 You shall not have any right, title or ownership interest in the Software, ASP Services or Documentation except the limited right to use the Software, ASP Services and Documentation as explicitly provided in this Agreement.
ARCHIVAL / BACK-UP COPY
4.1 You shall be entitled to make one copy of the Software (where Software is provided to you) and/or Documentation for backup or archival purposes only. You shall reproduce with such copy any trade-mark, copyright and other notices, or any other indicia of ownership contained in or associated with the Software and/or Documentation on such copy.
4.2 You may not use any backup or archival copy of the Software or Documentation for any purpose other than to replace an original copy if it is destroyed or becomes defective.
ASP SERVICE, PASSWORDS, LICENSEE CONTENT
5.1 Where ASP Services are specified in the Sales Order – Acknowledgement, Elluminate shall use commercially reasonable efforts to provide you and your Authorized Users with access via the Internet to the Software for the purpose of using the Software in accordance with the terms of this Agreement and in the manner more particularly set out herein. Generally, Elluminate endeavors to provide such access on a 24-hours per day and 365 days per year basis. However, such access may not be available from time to time as a result of repairs, upgrades or routine maintenance. Elluminate will use commercially reasonable efforts to minimize the impact of such activities.
5.2 You acknowledge and agree that you and your Authorized Users are responsible for obtaining your and their own access to the Internet and that Elluminate shall not provide such access or any services in relation thereto.
5.3 You acknowledge and agree that most information shared or communicated between you, your Authorized Users and Elluminate, the ASP Services or the Software occurs in an unsecured environment, is not treated as confidential, and may be intercepted and read by others.
5.4 As part of the set-up and initialization of the Elluminate, Elluminate will set-up the virtual classrooms, administrative privileges and class schedules in the manner agreed to with you and specified in the Sales Order - Acknowledgement. You shall pay the appropriate fees as per the Sale Order – Acknowledgment or provide Elluminate with a purchase order prior to such set-up and initialization.
5.6 You shall be permitted, as described above, to provide access codes and passwords to Authorized Users. You acknowledge and agree that you are solely responsible for the issuance of access codes and passwords and that Elluminate will only issue access codes or passwords to Authorized Users on your instruction and as your agent.
5.7 You acknowledge and agree that the user identification provided by Elluminate to you and each of your Authorized Users, so that you and your Authorized Users may access, utilize or otherwise employ the ASP Services and/or the Software, and the passwords selected by and used by you and your Authorized Users in conjunction with the user identifications are to be kept secret and confidential. You shall not, and shall cause your Authorized Users to not, disclose such user identifications or passwords to any other party without the express written permission of Elluminate.
5.8 You acknowledge and agree that you shall be responsible for each and every access, use or employment of the ASP Services or Software that occurs in conjunction with such passwords and user identifications, and that Elluminate is authorized to accept the user identifications and passwords as conclusive evidence that you, or your Authorized Users, as the case may be, have accessed, utilized, or otherwise employed the ASP Services and/or the Software.
5.9 You agree that you will not attempt to, nor permit your Authorized Users to, enter restricted areas of Elluminate’s computer systems or perform functions that you are not authorized to perform pursuant to this Agreement. Elluminate may, without notice, temporarily suspend your, or any of your Authorized User's, or any other party's access to the Software, ASP Services, or Documentation, (including, without limitation, any specific areas hosted within ASP Services or Software) by deactivating any password(s) or links to the Internet if Elluminate reasonably suspects that you, or any of your Authorized Users, or any other parties are obtaining unauthorized access to Elluminate’s other systems or information, or are using otherwise valid user identifications or passwords in any other unauthorized manner. These suspensions will be for such periods of time as Elluminate may reasonably determine is necessary to permit the thorough investigation of such suspended activity. Notwithstanding any other provision in this Agreement, Elluminate may terminate this Agreement, or any portion of the licenses granted herein, immediately, without notice, if it is determined that you or your Authorized Users have undertaken such unauthorized activity.
5.10 You are solely responsible for Licensee Content, as well as for the content of any communications by you or your Authorized Users, including any communications involving the use of the ASP Services or the Software. You are solely responsible for making and keeping back up copies of Licensee Content. You and your Authorized Users are solely responsible for applying the appropriate level of access rights to Licensee Content and to communications involving the use of the ASP Services or Software. Elluminate shall not be responsible or liable for the deletion or accuracy of Licensee Content, the failure to store, transmit, encrypt (or otherwise secure) or receive Licensee Content, or the storage, transmission, encryption (or other security) or receipt of any other communication involving the use of the ASP services or Software.
5.11 Upon request, Elluminate may, at your discretion, assist you by loading Licensee Content provided by you to your specific portions of the ASP Service or Software. You shall only provide to Elluminate Licensee Content which you own or are authorized to utilize in the manner that such Licensee Content will be utilized within the ASP Services or the Software.
6.1 For the term identified in the Sales Order-Acknowledgement, and thereafter as long as you continue to obtain support services from Elluminate pursuant to a then current support services agreement, Elluminate shall provide, to such degree as Elluminate makes such services generally available, support services on an annual basis with respect to the Software and/or ASP Services. Support services currently include delivery of bug fixes and workarounds, and support via telephone (up to a maximum of 250 calls per year, after which the charges set out in the Sales Order-Acknowledgement will apply). Where telephone support is provided, only those individuals who are responsible for providing support to your Authorized Users shall be entitled to make use of same.
6.2 If, for whatever reason, support is required to be delivered by Elluminate from anywhere other than the offices of Elluminate, and you approve the delivery of that support, you shall pay the then current applicable onsite support fees (including travel time) and Elluminate's reasonable travel, subsistence and other expenses incurred in connection therewith.
6.3 In providing support services Elluminate shall only be required to use reasonable commercial efforts to correct documented errors in the ASP Services and/or Software identified by you, which can be repeated by Elluminate (with your assistance if Elluminate so requests such assistance). Notwithstanding the forgoing, under no circumstances does Elluminate warrant or represent that all errors can or will be corrected.
7.1 Unless otherwise required by law, all information exchanged by the parties will be considered non-confidential. If the parties wish to exchange confidential information, such exchange will be made under a separate confidentiality agreement. Where ASP Services are specified in the Sales Order – Acknowledgement, you acknowledge and agree that the ASP Services are provided via the Internet and that your and your Authorized Users' information, including personal information, may be transferred across national borders and stored or processed in any country in the world. You are solely responsible for obtaining and maintaining any necessary consents or permissions from your Authorized Users or others whose information may be collected, recorded, processed, stored, used, disclosed, transferred, exchanged or otherwise handled as a result of, or as part of, any Licensee Content or any communications involving the use of the ASP Services or Software and agree to obtain and maintain all such consents or permissions throughout the term of this Agreement.
7.2 Notwithstanding the forgoing, you acknowledge that the Software and ASP Services contain valuable confidential information and proprietary technology of Elluminate and its suppliers. The Software and ASP Services other than through normal usage, shall be kept in confidence and not used for any purpose other than as permitted hereunder and shall not be disclosed to any third party except as required for you to operate the Software.
7.3 You may not create derivatives, modify, decompile or reverse engineer the Software or do anything that will reveal or generate the source code of the Software. Any such act will be deemed to constitute a trespass on the rights, titles and interests of Elluminate and its suppliers.
WARRANTIES AND LIABILITY
8.1 You acknowledge that you have or will have independently determined that the Software, ASP Services and Documentation meet your requirements and that you have not, and shall not, rely on any representation made, or information provided, by Elluminate as to the suitability of the Software, ASP Services or Documentation for any particular purpose.
8.2 EXCEPT AS OTHERWISE EXPLICITLY SET OUT HEREIN, THE SOFTWARE, ASP SERVICES AND DOCUMENTATION ARE PROVIDED ON AN "AS-IS", "AS AVAILABLE" AND "WITH ALL FAULTS BASIS" AND ELLUMINATE EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS CONCERNING THE SOFTWARE, ASP SERVICES OR DOCUMENTATION, INCLUDING ANY AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF DESIGN, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, INFRINGEMENT OR PERFORMANCE AND ANY AND ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS THAT MIGHT OTHERWISE ARISE DURING THE COURSE OF DEALING, USAGE OR TRADE AND THOSE WHICH MAY BE IMPLIED BY LAW. THIS AGREEMENT SETS OUT THE ENTIRE EXTENT OF ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS IN RESPECT OF THE SOFTWARE, ASP SERVICES AND DOCUMENTATION AND NO AGENT OF ELLUMINATE IS AUTHORIZED TO ALTER SAME. ALL ALTERATIONS SHALL BE IN WRITING AND SIGNED BY ELLUMINATE.
8.3 WITHOUT LIMING THE FOREGOING, YOU ACKNOWLEDGE THAT THE Elluminate ARE NOT DESIGNED OR LICENSED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE CONTROLS (INCLUDING, OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION/COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, SURGICAL OR MEDICAL FACILITIES, LIFE SUPPORT OR WEAPONS SYSTEMS) AND THAT ELLUMINATE SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED REPRESENTATION, WARRANTY OR CONDITION OF FITNESS FOR SUCH PURPOSES.
8.4 THE CONSIDERATION BEING PAID HEREUNDER DOES NOT INCLUDE ANY CONSIDERATION FOR ELLUMINATE TO ACCEPT ANY LIABILITY OR RISKS BEYOND WHAT IS EXPRESSLY PROVIDE HEREIN AND IF ANY SUCH LIABILITIES OR RISKS WERE TO BE ASSUMED BY ELLUMINATE, ELLUMINATE WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT CHARGING SUBSTANTIALLY HIGHER FEES.
8.5 NOTWITHSTANDING ANY OTHER PROVISION CONTAINED HEREIN, ELLUMINATE'S TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT AND THE LICENSE AND USE OF THE SOFTWARE, ASP SERVICES AND DOCUMENTATION UNDER ANY AND ALL CIRCUMSTANCES, ARISING IN ANY MANNER WHATSOEVER, SHALL BE LIMITED TO THE LICENSE FEES ACTUALLY PAID BY YOU TO ELLUMINATE UNDER THIS AGREEMENT IN THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE FINAL ACT OR EVENT WHICH GAVE RISE TO SUCH LIABILITY.
8.6 SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF CERTAIN LIABILITIES OR DAMAGES, SO ASPECTS OF THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
9.1 Elluminate shall defend you in any suit or proceeding or threatened suit or proceeding brought against you based solely on a claim that the Software infringes any enforceable copyright or trademark right in Canada or the United States of America of any third party but only if: (a) you notify Elluminate in writing of any such suit or proceeding or threatened suit or proceeding promptly after you first learn of such suit or proceeding or threatened suit or proceeding; and (b) you provide such reasonable assistance and co-operation as Elluminate may reasonably request from time to time in connection with the defense of any such suit or proceeding or threatened suit or proceeding.
9.2 Elluminate shall have complete control over any such suit or proceeding including, without limitation, the right to settle same on your behalf on any terms Elluminate deems desirable (in the sole exercise of its discretion) so long as it is at no cost to you. You shall have the right to be independently represented by counsel of your own choice and at your own cost. You shall not settle any such claim without Elluminate's prior written consent. Subject to the limitations of liability contained herein, Elluminate agrees to pay such damages and costs finally awarded against you or payable pursuant to a settlement agreement (approved of by Elluminate) in connection with such suit or proceeding.
9.3 If the use of any of the Software is enjoined as a result of any action, Elluminate may, at its sole option and expense: (a) obtain for you the right to continue using the Software; or (b) modify the Software so that it no longer infringes; or (c) provide you with reasonable alternate software, as applicable, providing substantially similar features, functions and capability; or (d) refund to you the license fees paid by you for the Software in the one (1) year period preceding the event giving rise to such action and you shall cease using the Software.
9.4 Elluminate shall have no liability hereunder for infringement claims based upon modifications by you, or on your behalf, to the Software, the combination of the Software with any other software, equipment, system or process or use of the Software other than as described in the Documentation.
9.5 The foregoing sets out the entire liability of Elluminate and the sole obligations of Elluminate to you in respect of any claim that the Software infringes any third party rights.
10.1 Elluminate may assign any of its rights and obligations under this Agreement without your consent. You shall not assign this Agreement or your rights hereunder without the prior written consent of Elluminate.
DEFAULT AND TERMINATION
11.1 This Agreement and the licenses granted herein may be terminated by Elluminate if any of the following events of default occur: (1) if you materially fail to perform or comply with this Agreement or any provision hereof; (2) if you fail to strictly comply with the provisions of Articles 2, 4, 5, 7, 10 or 12; (3) if you become insolvent or admit in writing your inability to pay your debts as they mature or make an assignment for the benefit of creditors; (4) if a petition under any foreign or U.S. bankruptcy act, receivership statute or the like, as they now exist or as they may be amended, is filed by you; or (5) if such a petition is filed by any third party or an application for a receiver is made by anyone and such petition or application is not resolved in your favor within ninety (90) days.
11.2 Termination due to a material breach of Clauses 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 5.9, 7.2 or 7.3 or Article 10 shall be effective on notice. In all other cases, termination shall be effective thirty (30) days after notice of termination if the defaults have not been cured within such thirty (30) day period.
11.3 Within ten (10) days after termination of this Agreement, you shall: (i) pay all amounts due and owing to Elluminate hereunder; (ii) cease and desist all use of the Software, ASP Services and Documentation; and (iii) at Elluminate's option, either (a) return to Elluminate all full or partial copies of the Software and Documentation in your possession or under your control, or (b) destroy the Software and Documentation, including all versions, copies or expressions in any tangible form or medium in your possession or under your control, and provide Elluminate with written confirmation that the foregoing has occurred.
TERM OF AGREEMENT, FEES AND PAYMENT
12.1 The initial term ("Initial Term") of this Agreement shall be as specified in the Sales Order – Acknowledgement. Where the Initial Term of this Agreement is not perpetual, the term of the Agreement shall be renewed automatically for successive periods of one (1) year each (a "Renewal Term") after the expiration of the Initial Term and any subsequent Renewal Term, unless you provide Elluminate, or Elluminate provides you with a written notice to the contrary ninety (90) days prior to the end of the Initial Term or any subsequent Renewal Term. Each Renewal Term shall incorporate and be governed by Elluminate's then current pricing.
12.2 The fees hereunder do not include any applicable sales, use, excise, value-added or other taxes. You shall be responsible for paying all other (i) sales, use, excise, value-added or other tax or governmental charges imposed on the use of the ASP Services or Software, (ii) freight, insurance and installation charges, and (iii) import or export duties or like charges. If you are tax exempt, Elluminate will require a copy of your Tax Exemption Certificate for its files.
12.3 All prices are quoted and all payments shall be made in the currency noted on the Sales Order - Acknowledgement. If no currency is noted, then such amounts shall be payable and paid in US dollars. Unless otherwise noted in the Sales Order – Acknowledgement.; (i) payment terms are Net 30 , and (ii) a 12% per annum fee (accrued and billable monthly) will apply to invoices not paid on time.
13.1 Your obligations under Articles 3, 7, 8, 9, 11, 13 and 14 will survive the termination of this Agreement or of any license granted under this Agreement for whatever reason.
14.1 This Agreement (namely the Sales Order – Acknowledgement and this Elluminate License Agreement) and its schedules contain the entire understanding and agreement between the parties respecting the subject matter hereof. This Agreement may not be supplemented, modified, amended, released or discharged except by an instrument agreed to by each party's duly authorized representative. All captions and headings in this Agreement are for purposes of convenience only and shall not affect the construction or interpretation of any of its provisions. Any waiver by either party of any default or breach hereunder shall not constitute a waiver of any provision of this Agreement or of any subsequent default or breach of the same or a different kind.
14.2 All notices, authorizations and requests in connection with this Agreement shall be deemed given (i) five (5) business days after being deposited in the US mail, postage prepaid, certified or registered, return receipt requested; or (ii) one (1) business day after being sent by overnight courier, charges prepaid; and addressed as provided in the Sales Order – Acknowledgement or to such other address as the party to receive the notice designates by written notice to the other.
14.3 The validity, interpretation, construction and performance of this Agreement shall be governed by the laws in force in (i) the State of California, United States of America (without reference to conflicts of laws principles) if you are in the United States of America when this Agreement is entered into; and (ii) the Province of Alberta, Canada (without reference to conflicts of laws principles) , if you are in any country other than the United States of America when this Agreement is entered into. The Services shall be deemed to be provided from California and this Agreement to be, in all respects, a California contract, when California law applies, and shall be deemed to be provided from Alberta, Canada and this Agreement to be, in all respects, an Alberta contract, when Alberta law applies. The respective courts of Santa Clara County, California, USA, when California law applies, and the competent courts in Alberta, Canada, when Alberta law applies, shall each have non-exclusive jurisdiction over all disputes relating to this Agreement. Each of the parties hereto irrevocably attorns and consents to the jurisdiction of such courts. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement and that in no event shall this Agreement be governed by the conflict of laws rules of any jurisdiction.
14.4 Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of the prohibition or unenforceability without invalidating the remaining provisions of this Agreement and any prohibition or unenforceability in any jurisdiction will not invalidate or render unenforceable that provision in any other jurisdiction. For any provision severed there will be deemed substituted a like provision to accomplish the intent of the parties as closely as possible to the provision as drafted, as determined by any court or arbitrator having jurisdiction over any relevant proceeding, to the extent permitted by the applicable law.