General Terms and Conditions

General Terms and Conditions

These General Terms and Conditions (these “Terms”) state the general terms and conditions under which SEMPRE, Inc. and/or its affiliates (“SEMPRE”) will deliver or provide to you (“you” or “Purchaser”) one or more SEMPRE Products (as defined below). Your use or possession of any SEMPRE Product constitutes your full agreement and covenant to comply with these Terms and the End-User License (the “License”) located at sempre.ai/docs/end-user-license.pdf, as amended from time to time, which is hereby incorporated by reference into these Terms. IF YOU DO NOT AGREE TO COMPLY WITH THESE TERMS AND THE LICENSE, YOU SHALL NOT USE OR POSSESS ANY SEMPRE PRODUCT.

Definitions

• “Agreement” shall mean together these Terms, the License, and any written agreement signed by you and SEMPRE (your “Written Agreement(s)”). In the event of any conflict between these Terms, the License, and your Written Agreement(s), the terms of your Written Agreement(s) shall control.
• “Business Day” means a period of time between and including Monday through Friday, excluding holidays.
• “Confidential Information” shall mean proprietary information of a party in any written, graphic, oral, machine readable form or any other form, including without limitation technical data, know-how, including but not limited to, that which relates to past, present and future research, product plans, products (including SEMPRE Product(s) and any unannounced products or services of SEMPRE ), Documentation or any part thereof, customers, markets, software, developments, inventions, processes, designs, drawings, engineering, hardware configuration information, marketing or finances, which information is reasonably apparent from the nature of the information to constitute confidential or proprietary information of a party, or is designated in writing to be confidential or proprietary. Confidential Information does not include information which: (i) is in the possession of the party receiving the Confidential Information (the “Receiving Party”) at the time of disclosure as shown by the Receiving Party’s files and records immediately prior to the time of disclosure by the party disclosing such Confidential Information (the “Disclosing Party”); (ii) prior to or after the time of disclosure becomes part of the public knowledge or literature other than as a result of any improper inaction or action of the Receiving Party; (iii) is approved by the Disclosing Party in writing, for release; or (iv) is required to be disclosed by applicable law or proper legal, governmental or other competent authority, and then only to the extent required, provided that the Disclosing Party, as applicable, shall be notified sufficiently in advance of such requirement so that it may seek a protective order (or equivalent) with respect to such disclosure, with which the Receiving Party shall fully comply. For avoidance of doubt, it is hereby clarified that the Confidential Information shall not be deemed to have been known by the Receiving Party or to be part of public domain merely because it or portions thereof is expressed in publications or patents in general terms not specifically pertaining to the subject matter of the Confidential Information.
• “Documentation” shall mean all documentation and material pertaining to the SEMPRE Product(s), including without limitation, operating instructions, input information, or format specifications, instructional documentation and guides, training manuals, and any other documentation that may be provided by SEMPRE to Purchaser.
• “Purchaser” shall mean any authorized User, purchaser and/or licensee of SEMPRE Product(s) (as defined below) using such SEMPRE Product(s) and Third-Party Software (as defined below) solely for such party’s own internal business operations and not for resale or other form of distribution.
• “License” shall have the meaning as stated in the preamble.
• “Options” shall mean any revision or modification to, or variant form of, the SEMPRE Product that generally is separately priced apart from a basic SEMPRE Product core product and/or involves an added function to the SEMPRE Product. Once delivered to Purchaser, Options shall be part of SEMPRE Product(s), as defined below, for all purposes of the Agreement excepting for Purchaser’s separate payment obligations as to such Options.
• “Software” shall mean any computer program, software module or package, or any part thereof in binary code form only, including any updates, error corrections and bug fixes thereto.
• “Support and Maintenance Fees” shall mean the fees paid by Purchaser in consideration for the Maintenance Support (defined below) to be provided by SEMPRE to Purchaser in accordance with Section 5 of this Agreement.
• “Third-Party Software” shall mean any software or portion thereof, licensed to SEMPRE by a third party and included in the applicable SEMPRE Product, together with all Options in the Third-Party Software after delivery.
• “User” shall mean a person or entity that has an active (i) Purchaser approved user identification, and (ii) Purchaser approved password, and which has rightful access to the SEMPRE Product(s). Each User may use all the functions of the SEMPRE Product(s), subject to the restrictions specified in this document and in the License, including without limitation those specified in Sections 3 and 6 of the License.
• “SEMPRE Product(s)” shall mean any Software or hardware provided or owned by SEMPRE.
• The term “purchase of ” or “sale of” (“to sell” or “to purchase”) SEMPRE Product(s) shall mean the acquiring or granting, respectively, of a license to use such SEMPRE Product(s), pursuant to the terms and conditions of these Terms and the License.

Restrictions

• Purchaser and all Users shall comply with all terms of the License with respect to the use or possession of any SEMPRE Product.
• In accordance with Section 10.4, Purchaser shall return to SEMPRE all SEMPRE Product(s) upon completion of the Term (defined below).

Title

• Ownership. All title, rights and interest in and to the SEMPRE Products, the Documentation, SEMPRE’s Confidential Information, and any part thereof, including without limitation all of the patents, trademarks, trade names, trade logos, copyrights, inventions, technology, design, schemes, know how, trade secrets and any other intellectual property rights pertaining to the SEMPRE Products, the Documentation, the SEMPRE Confidential Information, or any part thereof, shall be owned exclusively by SEMPRE. Purchaser shall keep the SEMPRE Products free and clear of all claims, liens and encumbrances. Ownership of the Third-Party Software and related Confidential Information and Documentation shall remain with the respective proprietors of the Third-Party Software.
• To avoid potential misunderstandings or disputes when SEMPRE Products and/or marketing strategies might seem similar to ideas submitted or feedback given to SEMPRE, you agree that by submitting any Feedback, (a) SEMPRE will be free to use, disclose, reproduce, license or otherwise distribute, and exploit such Feedback as SEMPRE sees fit, without any obligation or restriction of any kind to you; (b) there is no obligation for SEMPRE to review Feedback; and (3) there is no obligation to keep any Feedback confidential unless expressly agreed to in writing by SEMPRE in its sole discretion. “Feedback” means any comments, submissions or other feedback you may provide to SEMPRE concerning the functionality and performance of any SEMPRE Product, including identification of potential errors and improvements.

Ordering, prices, Payment Terms, Taxes and Export Restrictions.

• Quotations and Published Prices. All written quotations shall automatically expire on the expiration date listed on the quotation, but in no event later than ninety (90) days after issuance and are subject to withdrawal by notice within that period.  If there is no date listed on a quotation, then prices are subject to change by SEMPRE at any time without notice. SEMPRE, at its sole option, may extend the effective date of written quotations up to six (6) months.  SEMPRE may modify prices and products on the Price List and will take affect ninety (90) day from date of change.
• Changes and Substitutions. SEMPRE reserves the right to substitute equivalent product, where such substituted product does not materially affect form, fit or function.  Changes requested by Purchaser to product orders are subject to SEMPRE’s approval and written acceptance.
• Cancellation. Purchaser’s cancellation of any order is subject to SEMPRE’S receipt of Purchaser’s prior written notice not less than thirty (30) days before: (a) any product is shipped, or (b) the date services are to commence.
• Shipping. Products shall be shipped F.O.B. Origin.  Title to, and risk of loss or damage to, the products shall pass to Purchaser upon SEMPRE’s delivery of the products to a carrier. Unless otherwise set forth on SEMPRE’s quote, prices do not include shipping charges. Unless any order is marked “Ship Complete,” SEMPRE may make partial shipments in its discretion. SEMPRE reserves the right to use its own discretion in the manner and routing of shipments. Specified shipping dates shall be estimates only and are subject to change by SEMPRE without notice or liability.
• Claims. By signing for a receipt of a shipment and /or completion of installation supervision of a SEMPRE Product, Purchaser acknowledges that it has received the applicable SEMPRE Products ordered in full and in acceptable and working condition. Any claims for defective, damaged, or missing SEMPRE Products must be delivered in writing by the Purchaser to SEMPRE within (30) days from the receipt of the applicable SEMPRE Product and/or completion date of the installation, as applicable; otherwise, such claims will be deemed waived by the Purchaser. For any claims validly and timely made, at SEMPRE’s option in its sole discretion, SEMPRE shall either repair or replace the defective, damaged or missing SEMPRE Product. In the event that the SEMPRE Product cannot be repaired and an identical or reasonably similar product is unavailable, SEMPRE shall reimburse Purchaser to the extent such SEMPRE Product was already paid for by Purchaser. Such repair, replacement or refund shall be Purchaser’s sole and exclusive remedy for defective, damaged or missing products.
• Taxes. All prices are exclusive of, and Purchaser shall pay or reimburse SEMPRE for, all taxes, duties and assessments imposed on Purchaser or SEMPRE in connection with the licenses granted under the License and/or the purchase or use of the SEMPRE Products, including without limitation all sales, use, excise and other taxes and duties. Purchaser shall provide evidence necessary to sustain a tax exemption, where necessary, prior to order placement to ensure taxes should not be assessed on the sale.  Purchaser shall hold SEMPRE harmless from all claims and liability arising from Purchaser’s failure to report or pay any such taxes, duties or assessments.
• Payment. Payment in full is due net thirty (30) days from SEMPRE’s invoice date unless otherwise expressly stated on the applicable purchase order accepted by SEMPRE or signed customer contract.
• Late Payments. All amounts that are not paid by Purchaser as required by the Agreement may be subject to a late charge equal to 1.5% per month, or, if less, to the maximum amount allowed by applicable law. In the event that any amount due hereunder is overdue by more than 90 days, and SEMPRE has provided written notice to Purchaser, SEMPRE may suspend performance until such amount is paid.
• Export Controls. The SEMPRE Products are subject to the U.S. Export Administration Regulations and other export laws and regulations. Each Purchaser and User will comply with all applicable export and import control laws and regulations of the United States and the foreign jurisdiction in which any SEMPRE Product is used and, in particular, no Purchaser or User will not export or re-export any SEMPRE Product without all required United States and foreign government licenses.

Support and Maintenance and Training

• Support and Maintenance. Support and maintenance shall be provided to Purchaser in accordance with the Maintenance and Support Policy located at sempre.ai/docs/maintenance-support-policy.pdf as amended from time to time (the “Maintenance Policy”), which is hereby incorporated by reference into these Terms.
• Term of Software and Hardware Maintenance. Software and hardware maintenance support (“Maintenance Support”) for each SEMPRE Product shall be provided to Purchaser for one year from the date of purchase of such SEMPRE Product and shall be automatically renewed each year for an additional one (1) year term unless terminated by either party upon written notice no later than 30 days prior to the end of the applicable term.  Each renewal term will be charged based on the applicable prices in effect at the beginning of each renewal term. Purchaser’s right to Maintenance Support is not transferrable to any party without the written consent of SEMPRE.
• Renewal of Software and Hardware Maintenance. In the event Purchaser terminates Maintenance Support or fails to pay in full SEMPRE on the date on which the Support and Maintenance Fees, or any portion thereof, are due, SEMPRE shall have the right to terminate the Maintenance Support without notice to Purchaser. If Purchaser wishes to reinstate or renew Maintenance Support, Purchaser must first pay SEMPRE for all accumulated Support and Maintenance Fees with respect to the applicable SEMPRE Product(s) and/or Third-Party Software that would have accrued for the period during which Purchaser was using the applicable SEMPRE Product(s) but had not paid Support and Maintenance Fees.
• Training. In the event that Purchaser wishes to have SEMPRE provide any training courses, SEMPRE shall, subject to the availability of its personnel, provide such courses at a mutually agreeable time and mutually agreeable location and on terms, conditions and fees then in effect for such training courses. In addition to the payment of SEMPRE’s prescribed fees, Purchaser shall reimburse SEMPRE for the expenses incurred by SEMPRE in providing such training.

Confidential Information

• Nondisclosure and Non Use of Confidential Information. The Receiving Party agrees not to use any Confidential Information disclosed by the Disclosing Party except for the purposes of exercising the Receiving Party’s rights and obligations granted pursuant to the Agreement. Unless expressly authorized in writing by the Disclosing Party, the Receiving Party will not disclose any Confidential Information, other than to its employees and representatives who are required to have the information in order to exercise the rights and obligations granted under the Agreement. The Receiving Party shall be responsible for ensuring that the obligations of confidentiality and non-use contained herein are observed by its employees and consultants, and the Receiving Party represents that it has instituted policies and procedures which provide such protection for the Confidential Information. Without limiting the generality of the foregoing, the Receiving Party shall restrict access to those of its employees and consultants who are bound, either by the terms of their employment agreement or by separate written agreements, to maintain the Confidential Information in confidence and refrain from using the same for their own benefit. The Receiving Party shall bear full responsibility for any harm caused to the Disclosing Party by disclosure by said employees or consultants. The Receiving Party shall use the same degree of care, but no less than a reasonable degree of care that the Receiving Party utilizes to protect its own Confidential Information. The Receiving Party agrees to promptly notify the Disclosing Party in writing of any data breach, misuse or misappropriation of Confidential Information. The forgoing commitments of the Receiving Party shall survive any termination of the Agreement, and shall continue for a period which is five (5) years after the date of termination of the Agreement.
• Remedies. The Receiving Party agrees that its obligations provided in this Section 6 are necessary and reasonable in order to protect the Disclosing Party and its business, acknowledges that monetary damages would be inadequate to compensate the Disclosing Party for any breach by the Receiving Party of the obligations set forth in this Section 6, and consents to the Disclosing Party seeking injunctive relief against the threatened breach of the Agreement or the continuation of any such breach by Purchaser, without the necessity of proving actual damages.

Warranties and Limitations

• Warranties. SEMPRE’s sole warranties with respect to the SEMPRE Products are:
  
  • That the media delivered by SEMPRE to Purchaser for SEMPRE Product(s) and its Documentation shall be proper copies thereof valid for thirty (30) days from delivery of each item of such SEMPRE Product(s) and Documentation;
  • SEMPRE represents and warrants that the SEMPRE Products shall conform to the specifications appearing in the current published user manual supplied with the relevant SEMPRE Product, for a period of sixty (60) days after the delivery of such SEMPRE Product; and
  • During the first 12 months after purchase of a hardware SEMPRE Product by the original Purchaser, original Purchaser shall be entitled to receive replacement of such SEMPRE Product, free of charge, for any failure due to a defect in materials or workmanship. This limited warranty does not cover degradation of a SEMPRE Product due to abuse, neglect, accidental damage or loss. Any hardware replacements after the first 12 months will be subject to a fee negotiated prior to replacement and installation.
• The warranties set forth in this Section 7 are not transferrable by Purchaser to any party.
• In order to grant the rights, provide goods or perform services contemplated by the Agreement between SEMPRE and Purchaser, SEMPRE may acquire from independent contractors or third-party software vendors certain rights, good or services. To the extent that such third parties provide warranties to SEMPRE for the rights, goods, and/or services that they supply, and to the extent that they permit the transfer of such warranties to Purchaser, SEMPRE shall pass such warranties through to Purchaser. SEMPRE makes no independent representations or warranties for rights, goods or services provided by independent contractors or third-party software vendors, including without limitation with respect to Third-Party Software.
• THE LIMITED WARRANTIES in THIS SECTION 7 ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY SEMPRE WITH RESPECT TO THE WORKMANSHIP AND MATERIALS OF THE SEMPRE PRODUCTS. Except as expressly set forth in this section 7, SEMPRE makes no promises, representations or warranties, either express, implied, statutory or otherwise, with respect to any SEMPRE product, documentation or any portion thereof, including their condition, their conformity to any representation or description, or the existence of any latent or patent defects, and SEMPRE specifically disclaims all implied warranties of merchantability and fitness for a particular purpose.
• Subject to SEMPRE‘s support and maintenance obligations under Section 5 above and as further specified in the Maintenance Policy, SEMPRE does not warrant that (i) the SEMPRE Products will meet any Purchaser requirement, (ii) the operation of any SEMPRE Product shall be uninterrupted or error-free, or (iii) the Documentation shall be error- free.

Indemnification

• Subject to the limitations specified in the Agreement (including without limitation those specified in Section 9 below), SEMPRE agrees to defend, at its expense, any action brought against Purchaser based upon a claim that the SEMPRE Product(s) (other than Third-Party Software or software supplied to SEMPRE by Purchaser, or directed by Purchaser to be obtained by SEMPRE from a third party and included in the SEMPRE Product(s) delivered by SEMPRE to Purchaser, or SEMPRE Products as modified by Purchaser, without consent of SEMPRE (collectively “Excluded Material”)), the Documentation or any part thereof directly infringe any U.S. copyright, trademark or trade secret, provided that:
  
  • The SEMPRE Product(s) or Documentation alleged to be infringing are used by Purchaser within the scope of and full compliance with the Agreement, including these Terms and the License;
  • Purchaser promptly notifies SEMPRE in writing of any such action or proceeding that has been brought or which is threatened; and
  • Purchaser cooperates fully in the defense or settlement of any such action.
• Subject to the limitations of the Agreement (including without limitation those provided in Section 9 below), SEMPRE agrees to indemnify Purchaser against costs and expenses and damages finally awarded in an action described in Section 8.1, provided that Purchaser grants SEMPRE sole control of the defense of any such action and all related negotiations for settlement.
• Subject to the limitations of the Agreement (including without limitation those provided in Section 9 below), in the event that an injunction is issued against Purchaser’s use of the SEMPRE Products, Documentation, or any part thereof, or if in SEMPRE’s opinion all or any portion of the SEMPRE Product(s) or Documentation are likely to become the subject of a nonfrivolous claim for infringement or injunction or damages award, SEMPRE at its expense and sole option, will do one of the following:
  
  • procure for Purchaser the right to continue using the SEMPRE Product(s) or such affected portions;
  • replace or modify the SEMPRE Product(s) or Documentation or such affected portions, with a non-infringing alternative that reasonably accommodates Purchaser’s needs with respect to the original replaced or modified portion; or
  • refund monies paid by Purchaser to SEMPRE for the infringing SEMPRE Product in accordance with Section 9.3 below.
• Section 8.1 through Section 8.3 shall not apply with respect to any claim based upon (a) use of other than the current unaltered release of the SEMPRE Product(s); (b) the combination, operation or use of any SEMPRE Product, or any portion thereof delivered by SEMPRE pursuant to the Agreement with Excluded Materials (as defined in Section 8.1 above); or (c) with any other Software, hardware or device not supplied by SEMPRE, if such infringement would have been avoided but for the combination, operation or use of the SEMPRE Products with such Excluded Material or with any other Software, hardware or device not supplied by SEMPRE.
• Purchaser agrees to defend, indemnify, and hold harmless SEMPRE, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to Purchaser’s violation of these Terms, the License, or any Purchaser Written Agreement(s).

Limitations on Warranty and Indemnification

• This Section 9 specifies the entire liability of SEMPRE with respect to infringement of intellectual property rights of third parties or misappropriation of such intellectual property rights, in connection with the products/goods/services/deliverables, if any, provided pursuant to the Agreement.
• SEMPRE’s entire liability and Purchaser’s exclusive remedy under the Agreement, for any claim, whether in contract (including breach of warranty) or in tort (including negligence) shall be limited to a maximum amount equal to a reasonably allocated portion of the total amount paid by Purchaser to SEMPRE for those portions of the SEMPRE Products or Documentation upon which the liability is based.
• SEMPRE’s aggregate liability for all damages arising under the Agreement shall in no event exceed (i) in the first year — 100% of the amount paid by Purchaser to SEMPRE under the Agreement, (ii) in the second year, 50% of that amount (iii) in the third year, 25% of that amount, and (iv) any time thereafter, the amount of annual Support and Maintenance Fees paid by Purchaser to SEMPRE under the Agreement for the year in which the claim is made.
• In no event shall SEMPRE be liable under the agreement for indirect, special, punitive, exemplary, or consequential damages of any kind, including lost profits and loss of data, even if such party has been advised of the possibility of such damages.

Term and Termination

• Term. The Agreement shall commence on the earliest date of Purchaser’s use or possession of any SEMPRE Product and shall continue in full force and effect until terminated in accordance with your Written Agreement(s) (if any), by SEMPRE upon 10 days’ written notice to you, or otherwise terminated in accordance with the provisions of this Section 10 (the “Term”). All fees remaining but unpaid to SEMPRE under any order form between Purchaser and SEMPRE or other Written Agreement shall be immediately due and payable upon termination of such order form, Written Agreement, or these Terms unless (i) SEMPRE terminates such order form or Written Agreement without cause or (ii) Customer terminates such order form or Written Agreement upon a breach by SEMPRE that is not cured by SEMPRE within 30 days’ written notice to SEMPRE of such breach. If terminated by SEMPRE without cause, SEMPRE shall return to the Purchaser all fees paid to SEMPRE for services beyond the effective termination date.
• Termination for Insolvency. The Agreement will automatically terminate immediately prior to (i) Purchaser becoming insolvent, (ii) upon institution by Purchaser of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debt, (iii) upon the institution of such proceedings against Purchaser, which are not dismissed or otherwise resolved in Purchaser’s favor within sixty (60) days thereafter, or (iv) upon Purchaser making a general assignment for the benefit of creditors.
• Cessation of License and Rights. The Agreement, including the License, will automatically terminate and all rights granted to Purchaser pursuant to the Agreement shall immediately cease upon Purchaser’s breach of any provision of the Agreement, including without limitation failure to timely pay the License Fees in accordance with the payment provisions of these Terms. The obligations of Purchaser set forth in Sections 2, 3, 6, and 8.5 shall survive the termination of the Agreement.
• Return of SEMPRE Property. Immediately, but in any event not later than ten (10) days after termination of the Agreement, Purchaser shall return to SEMPRE, and shall make no further use of, all SEMPRE Product(s), the Third-Party Software, the Documentation, SEMPRE and any third party Confidential Information and any portions thereof and shall certify in writing to SEMPRE that the originals and copies, and any portions thereof, in any form, of the SEMPRE Product(s), the Third-Party Software, the Documentation, the SEMPRE Confidential Information, and any portions thereof in the possession of Purchaser have been destroyed or returned to SEMPRE.

Miscellaneous

• Interpretation. Any heading contained in the Agreement are for convenience purposes only and shall not be employed in interpreting and the construction of the Agreement. The Agreement will be interpreted and construed in accordance with its terms and conditions and without any construction in favor of or against any party.
• Survival. Sections 2, 3, 4.9, 6, 7.4, 8, 9, 10.4, 11.1 through 11.8, the payment obligations of any party incurred prior to termination, and the surviving terms of the License shall survive the termination of the Agreement.
• Governing Law. The Agreement shall in all respects be governed and construed according to the laws of the State of Delaware without reference to its principles of conflicts of laws. All disputes arising out of the Agreement shall be subject to the exclusive jurisdiction and venue in the federal and state courts located in Delaware. Purchaser hereby consents to the personal and exclusive jurisdiction and venue of these courts. However, prior to resorting to legal and/or equitable remedies, except with respect to a party’s breach of its obligations under Section 2 or Section 6, SEMPRE and Purchaser each agree to negotiate in good faith to resolve any dispute promptly, within not to exceed ten (10) Business Days following written notice thereof. Thereafter, either party may resort to its legal and equitable remedies for resolution thereof. Notwithstanding the above, either Party may resort to any available remedy at law or equity to avoid irreparable injury or to maintain the status quo.
• Severability. If any of the provisions of the Agreement, or any portions thereof, are held to be invalid or unenforceable under any applicable statute, regulation, orders or rule of law, the invalid or unenforceable part or provision shall be replaced with a provision which accomplishes, to the fullest extent possible, the original purpose of such part or provision in a valid and enforceable manner, and the balance of the Agreement shall remain in full force and effect.
• Waiver. No term or condition of the Agreement shall be deemed waived, and no breach or omission excused, unless in writing and signed by the party against whom enforcement of such waiver or consent is sought. A waiver of any condition or term of the Agreement in any regard shall not constitute a waiver or consent to any different or subsequent breach or omission, and either party may invoke any remedy available at law or in equity despite such prior waiver or consent.
• Notices. All notices and other communications to SEMPRE shall be in writing to the address below, reference the Agreement, and shall be deemed given when (i) delivered personally; (ii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iii) one (1) day after deposit with a commercial overnight carrier, with written verification of receipt:
  ‍
  SEMPRE, Inc.
  5825 Mark Dabling Blvd Suite 160
  Colorado Springs, CO 80919

• Force Majeure. Neither party will be responsible for any failure to perform its obligations (other than payment obligations) under the Agreement due to reasons beyond its reasonable control, including without limitation acts of God, war, riots, embargo, fire, explosion, sabotage, flood, default of subcontractors, accident, or interruption or delay in transportation, shortage or failure of supply of raw materials or finished merchandise, labor disputes whatever cause arising, or compliance with any other directions, or request of any authorized governmental officer, department or agency.
• Purchaser Acting on its Own Behalf; Non-Assignment. Purchaser represents that it is acting on its own behalf, and not as an agent for or on behalf of any third party, in entering into the Agreement. Purchaser may not assign its rights or obligations under the Agreement. SEMPRE shall be entitled to assign and transfer any and all of its rights and obligations under the Agreement to third parties, provided that such third party has taken upon itself to carry out and comply with all the provisions of the Agreement.
• Modification. SEMPRE may revise and update the Agreement from time to time in its sole discretion with notice to you at the most recent mailing address or email address provided to SEMPRE, or, if no address has been provided to SEMPRE, upon posting to the SEMPRE website. All changes are effective immediately when posted, and apply to all uses of the SEMPRE Product(s) hereafter. Your continued use of any SEMPRE Product following the posting of the revised terms of the Agreement and, if applicable to you in accordance with the first sentence of this section, receipt of notice, means that you accept and agree to the changes. You are otherwise expected to check this page from time to time so you are aware of any changes, as they are binding on you.
• Publicity. SEMPRE may identify Purchaser as its customer, in the framework of its promotional activities.