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5. General terms
5.1 Law. This Agreement and all matters arising out of or relating to this Agreement will be
governed by the internal laws of the State of Washington without giving effect to any choice of
law rule. This Agreement will not be governed by the United Nations Convention on Contracts
for the International Sales of Goods, the application of which is expressly excluded. In the event
of any controversy, claim or dispute between the parties arising out of or relating to this
Agreement, such controversy, claim or dispute may be tried solely in a state or federal court
for King County, Washington, and the parties hereby irrevocably consent to the jurisdiction and
venue of such courts.
5.2 Limitation of Liability. In no event will either party be liable for any indirect, incidental,
special, consequential or punitive damages, or damages for loss of profits, revenue, business,
savings, data, use or cost of substitute procurement, incurred by either party or any third party,
whether in an action in contract or tort, even if the other party has been advised of the
possibility of such damages or if such damages are foreseeable. In no event will Vulcan's
liability for damages hereunder exceed the amounts actually paid by You to Vulcan for the
Program. The parties acknowledge that the limitations of liability in this Section 5.2 and in the
other provisions of this Agreement and the allocation of risk herein are an essential element of
the bargain between the parties, without which Vulcan would not have entered into this
Agreement. Vulcan's pricing reflects this allocation of risk and the limitation of liability specified
herein.
5.3 Severability and Waiver. If any provision of this Agreement is held to be illegal, invalid or
otherwise unenforceable, such provision will be enforced to the extent possible consistent with
the stated intention of the parties, or, if incapable of such enforcement, will be deemed to be
severed and deleted from this Agreement, while the remainder of this Agreement will continue
in full force and effect. The waiver by either party of any default or breach of this Agreement
will not constitute a waiver of any other or subsequent default or breach.
5.4 No Assignment. You may not assign, sell, transfer, delegate or otherwise dispose of,
whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any
rights or obligations under this Agreement without the prior written consent of Vulcan. Any
purported assignment, transfer or delegation by You will be null and void. Subject to the
foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and
their respective successors and assigns.
5.5 Export Administration. You will comply fully with all relevant export laws and regulations of
the United States, including, without limitation, the U.S. Export Administration Regulations
(collectively "Export Controls"). Without limiting the generality of the foregoing, You will not,
and You will require Your representatives not to, export, direct or transfer the Program, or any
direct product thereof, to any destination, person or entity restricted or prohibited by the
Export Controls.
Appendix C FlipStart Software End User License Agreement
85
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