END USER LICENSE AGREEMENT
This Software License Agreement ("Agreement") is entered into on the date of execution of the Quote that incorporates by reference the terms hereof (the "Effective Date") and is a legal agreement between you, the customer ("you" or "Licensee") and Callback Technologies, Inc., a North Carolina corporation, with its principal place of business at 101 Europa Drive, Suite 120, Chapel Hill, North Carolina 27517 USA and its Affiliates, successors and assigns ("Licensor"). Licensee's address shall be either the address stated in the signature blocks below (if this agreement is signed by Licensee) or on the Licensor Quote. Licensor and Licensee shall be referred to collectively as "Parties" or individually as "Party". Notwithstanding anything else stated herein, if Licensee and Licensor have executed a different written agreement for access to or use of the Software ("Signed Agreement"), then the terms of the Signed Agreement shall govern and control and this Agreement shall have no effect. Now, therefore, in consideration of the mutual covenants herein expressed, and other true and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereby agree as follows:
1.1 "Affiliate" means an entity that owns or Controls, is owned or Controlled by, or is under common Control or ownership with a Party.
1.2 "Application" means any application, framework, component or system developed by or for Licensee that uses the Software as a runtime component, for Licensee's End Users' own internal purpose (and NOT for subsequent distribution to another third party, including, without limitation, as part of Middleware). Applications must represent a significant functional and value enhancement to the Software such that the primary reason for the End User to license such Application is other than the right to receive a license to the Software. Furthermore, Applications (A) may not contain modifications to the Software (including alterations to the original proprietary notices) unless approved herein; (B) must be in compiled, executable form; (C) may not provide substantially the same functionality as the Software or have as one of their purposes to build other applications, frameworks or programs that would compete with the Software; (D) may not reproduce or distribute any portion of the Documentation for the Software unless permitted herein; (E) may not behave as a thin layer between the End Users and the Software with no additional processing and modification; and (F) are subject to a license agreement that (i) limits the End User's use of the Software to a run-time component, (ii) restricts the End User from changing, altering or modifying the Software, creating Derivative Works, translations, reverse assembling, reverse compiling, disassembling, or in any way reverse engineering the Software, and (iii) prevents the End User from hosting, sublicensing, renting, distributing, leasing or otherwise transferring or assigning any portion of the Software.
1.3 "Change of Control" of Licensee means a transaction or series of transactions (a) pursuant to which Control of Licensee is acquired by persons or entities other than those who Control Licensee on the Effective Date of this Agreement, or (b) resulting in the sale of all or substantially all of Licensee's assets. For the avoidance of doubt, "Change of Control" shall not include the purchase of Licensee's equity or ownership, or any portion thereof, by a private equity or hedge fund.
1.4 "Confidential Information" means all information which the Disclosing Party protects against unrestricted disclosure to others, furnished by the Disclosing Party to the Receiving Party (the party disclosing such Confidential Information being the "Disclosing Party" and the party receiving such Confidential Information being the "Receiving Party") in connection with this Agreement that (a) the Disclosing Party designates as confidential at the time of disclosure or (b) should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding its disclosure, including but not limited to, pricing terms and any information (including benchmark results) that is related to the Software, Applications and the content of this Agreement.
1.5 "Control" means the power to direct or cause the direction of the affairs of an entity whether by means of direct or indirect ownership of fifty percent (50%) or more of the voting rights or similar rights of ownership or by means of having the power to direct the management or directors whether conferred by constitutional documents, shareholder agreement or other document regulating the affairs of an entity.
1.6 "Derivative Work" means a work which is based upon one or more pre-existing copyrightable works such as a revision, modification, translation, abridgment, compilation, condensation or expansion or any other form in which such pre-existing work may be recast, transformed, or adapted, and which, if prepared without the consent of the author of the pre-existing work, would be a copyright infringement.
1.7 "Developer" means any named identifiable individual person, not necessarily named at the time of a license grant, regardless of whether or not the individual is actively using the Software at any given time, designated by Licensee to do any of the following: (a) build, compile, assemble, test or otherwise cause to be executed any application programs that rely on the Software as a component; (b) use or execute any Software programs for development, testing, or support purposes; (c) package or otherwise prepare Software components for redistribution as part of another program or application; or (d) have possession of any Software resources or files for any purposes other than archiving.
1.8 "Documentation" means printed materials and "online" or electronic documentation relating to the Software provided under this Agreement.
1.9 "End User" means any person or entity who receives a right to use the Software as a run-time component of any Application for its own use and not for resale or further sublicensing, through a legally binding agreement with Licensee.
1.10 "Intellectual Property" means patents of any type, design rights, utility models or other similar invention rights, copyrights, mask work rights, trade secret or confidentiality rights, trademarks, trade names and service marks and any other intangible property rights, including applications and registrations for any of the foregoing, in any country, arising under statutory or common law or by contract and whether or not perfected, now existing or hereafter filed, issued, or acquired.
1.11 "Machine" means an attended or remotely controlled desktop, workstation or computer where the Software is loaded, that is operated by no more than one authorized user at a time.
1.12 "Middleware" means software products or services which are developed by Licensee for use by third-parties for creation of third-party's software products and which are included as a part of such third-party's software products or services. This includes, but is not limited to, Java classes, ActiveX objects, .NET assemblies, Delphi components, Dynamic-Link Libraries, Shared Objects, etc.
1.13 "New Release" means new releases of the Software where the number to the left of the first "." in the product designation is changed by Licensor (e.g. "16.0.6360.0" is changed to "17.0.6360.0") and made generally available by Licensor under a Subscription or a separate maintenance agreement.
1.14 "Non-Production" means a non-operational environment into which the Software may be installed, which is not processing live data, which is not running any operations of the Licensee and which has not been deployed to permit any users to access live data. Non-Production environments include development and test environments.
1.15 "Object Code" means computer programs assembled or compiled in magnetic or electronic binary form on software media, which are readable and usable by machines, but not generally readable by humans without reverse-assembly, reverse-compiling, or reverse-engineering.
1.16 "Open Source Viral License Terms" means terms in any software license which require, as a condition of use, modification and/or distribution of such software or other software incorporated into, derived from or distributed with such software (a "Work"), any of the following: (a) the making available of source code or design information regarding the Work; (b) the granting of permission for creating Derivative Works regarding the Work; or (c) the granting of a royalty-free license to any party under intellectual property rights regarding the Work.
1.17 "Quote" means any Licensor standard ordering document (including online purchasing webpage) referencing this Agreement and reflecting the specific named Software purchased by Licensee.
1.18 "Product Key" means a file or a unique sequence of digits and/or symbols provided to you by the Licensor confirming the purchase of the license from the Licensor, which may carry the information about the license, i.e. its type, the username and the number of licenses purchased, and enabling the full functionality of the Use of the Software in accordance with the license granted under this Agreement. Only Licensor and or its authorized representatives are permitted to produce Product Keys for Software.
1.19 "Server" means a physical or virtual machine which has a server operating system and/or where more than one person can simultaneously use the computer either by direct or remote access.
1.20 "Software" means collectively, (a) the specific version of the software program(s) identified in the Quote, along with the Documentation, if applicable, all as developed by or for Licensor, and/or any Affiliates and delivered to Licensee hereunder electronically; (b) during the Subscription Term, any Updates and New Releases thereof subject to unrestricted shipment and made generally available by Licensor to as part of Maintenance and (c) any complete or partial copies of any of the foregoing.
1.21 "Source Code" means the human-readable form of the computer programming code and related system documentation including all comments and any procedural code such as job control language.
1.22 "Subscription" means the Licensee's right to Use the relevant Software and Support and Maintenance on a term limited basis, as and to the extent listed herein and on the Quote.
1.23 "Use" means accessing, downloading, storing, loading, installing, executing, displaying, copying the Software into the memory of a computer or otherwise benefiting from using the functionality of the Software in accordance with the Documentation.
1.24 "Update" collectively means revisions, patches, enhancements, fixes, modifications, additions or maintenance releases of the Software where any number to the right of the first "." in the product designation is changed by Licensor (e.g. "16.0.6355.0" is changed to "16.0.6360.0"), if any, made publicly available by the Licensor but does not include New Releases.
2. LICENSES AND DISTRIBUTION RIGHTS
2.1 Software License Grant. During the Term of this Agreement and subject to payment of the Fees, Licensor grants Licensee a worldwide, nonexclusive, nontransferable, except in accord with Section 12.3 (Assignment), royalty-free but consideration-bearing license:
2.1.1. Development. Install the Software on Servers operated by or on behalf of Licensee for internal use by any number of Developers to develop, create, build and test any number of Applications on any number of Machines;
2.1.2. Distribution. Copy, market, distribute and sublicense the Software together with the associated Documentation, as part of Licensee's on-premises deployment of Applications to End Users. For the avoidance of doubt, Licensee's End Users may use the Applications as part of Licensee's frameworks, components or systems for such End Users' own internal purpose (and NOT for subsequent distribution to another third party, including, without limitation, as part of Middleware) without any additional payment to Licensor (royalty-free) and sublicenses of the Software validly granted by Licensee to its End Users for on-premise Applications hereunder shall survive termination or expiration of this Agreement for any reason. Licensee may not supply any means by which its End Users could incorporate the Software or portions thereof into their own products and Licensee may not modify, alter, rename or sign any of the Software files with Licensee's own signature without Licensor's express permission;
2.1.3. Hosting. Install and use the Software on Servers operated by or on behalf of Licensee in order to provide End Users with access and use of the Applications as commercially-available cloud-based software-as-a-service hosted solutions;
2.1.4. Evaluation. Copy and distribute the Software as part of the Applications to prospective End Users up to a maximum of thirty (30) days or such longer period as approved by Licensor in writing, provided that the evaluation copies must not be used in production and the Software shall be destroyed or deleted at the end of the evaluation period.
2.2 Source Code License.
2.2.1 Scope. This Source Code License regulates the conditions applicable for Use of the Software Source Code by Licensee in conjunction with a paid license as listed in Section 2 herein for the Software solely to the extent necessary to support the development of an Application. Any use of the Software that differs from or exceeds the limits of this Source Code License is prohibited.
2.2.2 Rights of Use. During the Term of this Agreement and subject to payment of the Fees, and solely if designated in the Quote, supplementing the rights of Use granted to the Licensee under the license grant herein, the Licensor grants the Licensee the non-transferable, non-sublicensable, non-exclusive, worldwide, royalty-free, paid-up license: (i) to reproduce and use the Source Code solely in connection with the development and maintenance of an Application; (ii) to make backup copies for the purpose of this Agreement; (iii) to store the Source Code in a Licensee owned source code repository; (iv) to create Permitted Modifications of the Source Code, solely to the extent necessary to support the development and maintenance of the Application; (v) to compile the Source Code, including any Permitted Modifications thereof, into Run-Time Modules; (vi) to reproduce an unlimited number of Run-Time Modules for physical incorporation into the Application; (vii) to market, sell, and distribute the Application and (viii) to sign the Permitted Modification files with Licensee's certificate. For the avoidance of doubt, this Source Code license shall lapse automatically if the Licensee does not possess a valid license for the Object Code of the Software as set forth herein. The Licensee may make the Source Code accessible only to those of its staff who require such access for the fulfillment of their tasks in connection with the contractually-compliant Use of the Software by the Licensee. Licensee is not permitted to pass on the Source Code or parts thereof to third parties or to make the same accessible to third parties, either wholly or partially, in any form whatsoever, in particular through networks. This also applies to the Source Code in the form modified by the Licensee. "Run-Time Module" means the executable Object Code derived from compiling the Software to be incorporated into the Application as an inseparably embedded code. "Permitted Modifications" means any improvement, bug fix, error correction, embedded commenting, enhancement, extension, rewrite, edit, addition to, deletion from, Derivative Work, or other modification including but not limited to the addition to or deletion from the logic of the operations, substance or structure of either the original Source Code or any previous Permitted Modifications by or for Licensee.
2.2.3 Copyrights and other rights in the Source Code. The copyright and all other intellectual property rights and rights against unfair exploitation in the Software Source Code, in particular the exclusive right to permanent or temporary, full or part duplication by any means and in any form, the exclusive right to modify the Software Source Code and to create works derived therefrom and the exclusive right to distribution, including the right to provide access through networks such as the Internet, the right to hire out and the right to loan, are held exclusively by the Licensor and shall remain the property thereof. The Licensee has only the non-exclusive rights of Use for the Software Source Code stated in this Source Code License. Copyright notices, trademarks, company and other business designations of the Licensor or third parties which appear in the programs or the documentation or in other accompanying material or in the Source Code may not be altered, deleted or removed, even in copies of the programs or the documentation. If the Permitted Modifications made by the Licensee to the Source Code are protected by copyright, in the sense of a Derivative Work, the rights in such Derivative Works shall be the property of the Licensee, except that Licensor shall own any alterations where the Software Source Code is made different by Licensee altering the names of variables, constants, literals and similar programming language constructs, or altering the formatting of the Source Code or rearranging the blocks of the Source Code when such rearrangement or alteration doesn't change the logic of the operations. This does not, however, in any way affect the exclusive rights of the Licensor in the Source Code in its original form, so that any exercise of the rights of the Licensee in the works created and derived by it is permitted only with the prior express approval of the Licensor.
2.2.4 License Back. Licensee hereby grants Licensor a worldwide, non-exclusive, perpetual, irrevocable, no-charge, royalty-free, fully transferable, and fully sublicensable license to: (i) copy, create Derivative Works of, distribute, perform, and display Permitted Modifications (and Derivative Works thereof); and (ii) make, have made, use, sell, offer to sell, import, and otherwise transfer and exploit Permitted Modification (and Derivative Works thereof), including but not limited to, as part of or as incorporated into current or future editions of the Software. Licensee will promptly deliver to Licensor the source code for any such Permitted Modifications (together with all associated or embedded comments and commentary) in an electronic format reasonably satisfactory to Licensor. Notwithstanding the foregoing, Licensor has no obligation to incorporate any Permitted Modifications into the Software. Upon Licensor's request in consideration for incorporating the Permitted Modifications into Licensor's Software and providing support for such Permitted Modifications as incorporated, Licensee will transfer ownership of the Permitted Modifications to Licensor, including all Intellectual Property rights therein under the terms of a separate software transfer agreement.
2.2.5 No Support. No maintenance or support services shall be supplied by the Licensor in connection with any Permitted Modifications unless agreed to in writing by Licensor.
2.3 Back-up and documentation. Licensee may make a reasonable number of copies of the Software for Non-Production purposes provided you reproduce all copyright and other proprietary notices that are on the original copy of the Software. Further, Licensee may make a reasonable number of copies of the Software user documentation (i.e. manuals and installation guides) for Licensee's internal use in accordance with this Agreement, provided that Licensee reproduces all copyright and other proprietary notices that are on the original copy of the Documentation.
2.4 License Restrictions. Unless expressly otherwise set forth in this Agreement, Licensee will not: (a) modify, translate or create Derivative Works of the Software; (b) decompile, reverse engineer or reverse assemble any portion of the Software or attempt to discover any source code or underlying ideas or algorithms of the Software; (c) remove or alter any trademark, logo, copyright or other proprietary notices associated with the Software; (d) sell or license the Software independent of an Application as a stand-alone product; (e) use the Software to develop any works which provide substantially the same functionality as the Software or enable building other software which would compete with the Software, including but not limited to, using a web service to call and/or expose the Software in non-compiled form; (f) cause the Software or Application to be subject to any Open Source Viral License Terms; (g) publicize or otherwise disclose any results of benchmark tests run on the Software; and (h) cause or permit any other person or entity to do any of the foregoing.
2.5 Use by Third Parties. Licensor acknowledges and agrees that the Software may, subject to the terms of this Agreement, be used by Licensee's third-party service providers, cloud hosting providers, independent contractors, consultants and outsourcers (collectively "Contractors"), provided that the Contractors agree to comply with the terms of this Agreement and use the Software only for Licensee's benefit and business purposes. If requested by Licensor, Licensee will provide a list of Contractors that are using the Software pursuant to this Section to assist Licensor in managing the licensing of the Software. Licensee will remain responsible and legally liable for the proper Use of the Software in accordance with this Agreement by the Contractors.
2.6 Distribution through Affiliates, Resellers and Distributors. Licensor grants Licensee the non-exclusive right during the Term of this Agreement to authorize its Affiliates, distributors and/or resellers (collectively referred to as "Distributors") to further distribute and license the Application to End Users, provided that Partner shall be liable to Licensor for any breach of the terms by such Distributors to the same extent as Partner would be liable to Licensor under this Agreement for such a breach by Partner.
3.1 Software. Licensor and its suppliers have and will retain all right, title and interest in and to the Software and Documentation (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) and all copies, modifications and Derivative Works thereof. Licensee acknowledges that it is obtaining only a limited license right to access and use (as the case may be) the Software and Documentation and that irrespective of any use of the words "purchase," "sale," or like terms hereunder no ownership rights are being conveyed to Licensee under this Agreement or otherwise. In addition, Licensor will have a royalty-free, worldwide, irrevocable, perpetual license to use for any purpose any suggestions, enhancement requests, recommendations or other feedback provided by Licensee relating to the Software and Documentation.
3.2 Trademarks. Each Party hereby grants the other Party a non-exclusive, non-transferable, non-sublicensable license to use the other Party's trademarks in connection with this Agreement. Nothing herein shall grant either Party any right, title or interest in the other Party's trademarks. At no time during or after the Term of this Agreement shall either Party challenge or assist others to challenge the other Party's trademarks or the registration thereof or attempt to register any trademarks, marks or trade names confusingly similar to those of the other Party. The Parties shall consult with each other before issuing any press releases or otherwise make any public statements with respect to this Agreement and the transactions contemplated hereby. Notwithstanding the foregoing, each Party may identify the other Party by name and logo as a current or former partner on such Party's website, announcements and in product literature.
4. FEES; PAYMENT TERMS; COMPLIANCE.
4.1 Fees; Payment Terms. Amounts due for any Software may be invoiced and payable in accordance with the Quote ("Fees"). All payments shall be made in the currency noted online or on the applicable Quote within thirty (30) days of the applicable invoice. During the Term, Licensor may, on the commencement of each twelve (12) months, and in its sole discretion, modify the annual subscription Fee, up to a percentage increase not to exceed the greater of the United States Consumer Price Index as published by the U.S. Department of Labor effective in the year of the subscription renewal or three percent (3%), upon thirty (30) days' prior notice (as set forth in Section 12.8 ("Notices") to Licensee. A twelve (12) month period commences on the anniversary of the Effective Date. Any balances that are more than ninety (90) days past due shall incur interest equal to 1.5% compounded monthly of the amount due, or the maximum amount allowed by law, whichever is less. Licensee's failure to pay Fees shall constitute a material breach of this Agreement. Licensee agrees that all Fees due to Licensor shall not be used to reduce, offset, or make contingent any payments due to Licensor. Licensee can offset claims only if they are uncontested or awarded by final and binding court order. Unless explicitly stated herein, all payments made hereunder are non-refundable. If Licensee fails to pay any Fee or other amount payable by it on its due date, Licensor may, in addition to any other rights it may have in law or in equity, at its sole discretion, suspend all or a portion of Licensee's rights under this Agreement in whole or in part with respect to any or all of the Software until such time as any outstanding amount has been received by Licensor.
4.2 Taxes. All federal, state or local sales, VAT, GST, foreign withholding (including foreign income withholding), use, property, excise, service, or similar taxes ("Tax(es)") now or hereafter levied, all of which (except income or corporate taxes) shall be borne by Licensee. If any such Taxes, wire transfer or bank fees have to be withheld or deducted from any payment under this Agreement, Licensee will increase payment under this Agreement by such amount as shall ensure that after such withholding or deduction Licensor shall have received an amount equal to the payment otherwise required. Notwithstanding the foregoing, Licensor will be solely responsible for its income tax obligations and all employer reporting and payment obligations with respect to its personnel. Licensee agrees to pay any interest and penalties imposed by any taxing authorities to the extent such interest and penalties are applicable to taxes not paid at Licensee request or as a result of reliance by Licensor on Licensee representations. If a certificate of exemption or similar document or proceeding is necessary in order to exempt any transaction from a tax, Licensee will obtain such certificate or document.
4.3 Compliance. For the Term of this Agreement, Licensor may require Licensee to complete accurately a self-audit questionnaire in a form provided by Licensor. If an audit reveals unlicensed use of the Software, a breach of this Agreement or underpayment of any Fees by Licensee or its employees or agents, Licensee must, in addition to such other rights and remedies as may be available to Licensor as the result of such breach, promptly order and pay for sufficient licenses, support and maintenance fees (at Licensor's then-current price for such licenses) to permit all usage disclosed. The information obtained from the audit is Licensee's Confidential Information, and Licensor will use information obtained from such audit only to verify and enforce Licensee's compliance with the terms of this Agreement, to comply with any governmental reporting requirements and for such other purposes as required by law. The foregoing audit right will not apply to the extent not allowable under applicable law.
5. TERM AND TERMINATION.
5.1 Term and Termination. If Licensee purchased a Subscription, the term of the subscription shall be twelve months from the date of the Quote unless the Quote states otherwise and the license for the Software and this Agreement will terminate at the end of the Subscription Term unless it is renewed ("Subscription Term"). Each subsequent annual renewal Subscription Term will start on the day following the expiration of the previous Subscription Term regardless of the actual subscription renewal date. If Licensee purchased a perpetual license to the Software, then unless terminated earlier herein, the Software license and this Agreement begins on the date of the Quote and continues perpetually ("Perpetual Term"). Collectively or individually depending on Licensee's purchase, the Subscription Term and the Perpetual Term may be referred to herein as the "Term". Licensee may terminate this Agreement at any time by providing written notice to Licensor, however, Licensee will remain liable for the full amount of Fees for the entire Term and Licensee will not receive a refund of any Fees paid. If Licensee's Subscription Term expires without renewal or otherwise terminates, then all Support and Maintenance shall cease, all licenses and/or access granted herein and this Agreement immediately terminates and at Licensor's request, Licensee shall promptly destroy all copies of the Software and related documentation in Licensee's possession or control. If at any time Licensees fail to make timely payment of any applicable Fees due or use the Software in excess of Licensee's purchased license but fail to timely notify Licensor of such excess use and purchase and pay for the additional licenses as required or otherwise breach any term or condition of this Agreement, then Licensor may, in addition to any other remedy to which it may be entitled, terminate Licensee's license to the Software and any rights Licensee may have to Support and Maintenance. Either Party may terminate this Agreement, effective immediately upon written notice, if the other party becomes the subject of a voluntary or involuntary petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditors, if that petition or proceeding is not dismissed with prejudice within sixty (60) days after filing. If Licensor is terminating the license for cause, and Licensee has acquired a Subscription, Licensee remains liable for all unpaid Fees that are payable for the entire Subscription Term.
5.2 Effects of Termination. Upon expiration or termination of this Agreement for any reason: (a) any amounts owed to Licensor under this Agreement before such termination will be immediately due and payable; (b) Licensee shall cease any and all use of the Software, and at Licensor's request destroy all copies of the latter and so certify to Licensor in writing; (c) each Party will destroy the Confidential Information of the other Party that it obtained during the course of this Agreement; and (d) at Licensor's request, Licensee must certify in writing to Licensor that it has complied with the terms of this Section 5.2.
5.3 Survival. Sections 1, 3, 4 (as long as Fees are due to Licensor), 5, 7, 9, 10, 11, 12 and 13 shall survive any termination or expiration of this Agreement.
6. SUPPORT AND MAINTENANCE. Subscription licenses to the Software include complimentary standard support, Updates and New Releases during the Subscription Term. Perpetual licenses to the Software include Updates and standard support. Licensee may purchase annual Maintenance and/or Premium Support as further described at https://www.callback.com.
7. CONFIDENTIAL INFORMATION. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party's non-disclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). Each party will only disclose Confidential Information to its employees, agents, representatives and authorized contractors (collectively "Representatives") having a need to know for the purposes of this Agreement. Each party will notify and inform such Representatives of each party's limitations, duties, and obligations regarding use, access to, and nondisclosure of Confidential Information and will obtain or have obtained its Representatives' agreements to comply with such limitations, duties, and obligations with regard to such Confidential Information no less restrictive than those contained herein. Each party is liable for all acts and omissions of the Representatives related to the other party's Confidential Information. Each party agrees to give notice to the other party immediately after learning of or having reason to suspect a breach of any of the proprietary restrictions set forth in this Section. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
8. DATA PROTECTION. The Software does not store or process any data or information that is subject to regulation under Applicable Data Protection Law ("Protected Data") in connection with this Agreement, including without limitation Personal Data, Protected Health Information and Personally Identifiable Information (as such terms are defined in Applicable Data Protection Law), except for Protected Data related to Licensee contact persons and other usage information related to license compliance. "Applicable Data Protection Law" means all applicable international, federal, state, provincial and local laws, rules, regulations, directives and governmental requirements currently in effect and as they become effective relating in any way to the privacy, confidentiality or security of Protected Data including, without limitation, the European Union Directives and Regulations governing general data protection and all applicable industry standards concerning privacy, data protection, confidentiality or information security. Licensor has implemented appropriate technical, organizational, and security measures designed to safeguard and protect Protected Data provided by Licensee to Licensor and Licensor may access, use and transfer such Protected Data to Licensor's Affiliates and third parties (including those located outside of the European Economic Area) only for the purposes of fulfilling Licensor's obligations and exercising Licensor's rights, providing information to Licensee and complying with Licensor's legal and auditing requirements. Licensee is responsible for providing any notices and obtaining any consents and approvals required to collect, process, transfer, maintain and use the data collected by Licensee in connection with Licensee's use of the Software.
9. LIMITED WARRANTY; DISCLAIMER OF WARRANTY. Licensor warrants that it has the right to grant the licenses to the Software. Licensor warrants that such Software will substantially conform in material respects to the Documentation provided by Licensor with the Software. This limited warranty is not transferable and extends only for thirty (30) days from the Delivery Date of the Software. This limited warranty does not cover damages, defects, malfunctions or failures caused by any unauthorized modification of the Software by you, or your agents; any abuse, misuse or negligent acts of you; modification by you of the Software; or any failure by you to follow Licensor's installation, operation or maintenance instructions. EXCEPT FOR THE PRECEDING EXPRESS LIMITED WARRANTY, LICENSOR MAKES, AND YOU RECEIVE, NO INDEMNIFICATION OR OTHER WARRANTIES RELATED TO THE SOFTWARE WHETHER EXPRESS, IMPLIED OR STATUTORY, AND LICENSOR SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS OF THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME RESPONSIBILITY FOR SELECTING THE SOFTWARE AND THE RESULTS ACHIEVED. YOUR SOLE AND EXCLUSIVE REMEDY, AND LICENSOR'S ENTIRE LIABILITY, FOR BREACH OF THE WARRANTIES PROVIDED HEREIN, IS FOR LICENSOR TO USE COMMERCIALLY REASONABLE EFFORTS TO REMEDY ANY NON-CONFORMANCE. ALL TRIAL VERSIONS, INCLUDING BUT NOT LIMITED TO FREE, TRIAL, BETA, OR NON-COMMERCIAL VERSIONS OF THE SOFTWARE ARE PROVIDED ON AN AS IS AND AS AVAILABLE BASIS, WITHOUT WARRANTIES OF ANY KIND, MAINTENANCE, SUPPORT OR INDEMNITY OBLIGATION ON THE PART OF LICENSOR. If a jurisdiction applicable to this Agreement restricts the exclusion of certain implied warranties, limitations on how long an implied warranty may last, or the exclusion or limitation of incidental, consequential, or special damages: (A) each warranty which cannot be excluded is limited in time to sixty (60) days from the Delivery Date; and (B) Licensor's total liability to you for breach of all such warranties are limited to the lesser of the remedy stated herein or the amount stated in Section 10 (Limitation of Liability).
10. LIMITATION OF LIABILITY. IF LICENSEE SHOULD BECOME ENTITLED TO CLAIM DAMAGES FROM LICENSOR FOR ANY REASON (INCLUDING BUT NOT LIMITED TO THIRD PARTY INFRINGEMENT), LICENSOR WILL BE LIABLE ONLY FOR THE AMOUNT OF LICENSEE'S ACTUAL DIRECT DAMAGES, NOT TO EXCEED (IN THE AGGREGATE FOR ALL CLAIMS) THE FEES, IF ANY, LICENSEE PAID TO LICENSOR UNDER THIS AGREEMENT WITHIN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EARLIEST DATE ON WHICH THE ACT OR OMISSION GIVING RISE TO THE CLAIM OCCURRED OR SHOULD HAVE OCCURRED, AS APPLICABLE. The provisions of this Agreement allocate the risks between Licensee and Licensor. The Fees reflect this allocation of risk and the limitations of liability herein. EACH EXCLUSION OR LIMITATION IS INTENDED TO BE A SEPARATE AND THEREFORE SEVERABLE EXCLUSION. The parties agree that the limitations specified in this Section 10 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
11. EXCLUSION OF DAMAGES. UNDER NO CIRCUMSTANCES WILL LICENSOR BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, MISREPRESENTATION AND OTHER CONTRACT OR TORT CLAIMS; LOST PROFITS; OR ANY DAMAGES RESULTING FROM LOSS OF DATA, SECURITY BREACH, PROPERTY DAMAGE, LOSS OF REVENUE, LOSS OF BUSINESS OR LOST SAVINGS), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE PERFORMANCE OF THE LICENSOR PRODUCTS OR OF ANY OTHER OBLIGATIONS RELATING TO THIS AGREEMENT, WHETHER OR NOT LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The limitations of liability set forth herein will survive and apply notwithstanding the failure of any limited or exclusive remedy for breach of warranty set forth in this Agreement. The Parties agree that the foregoing limitations will not be read so as to limit any liability to an extent that would not be permitted under applicable law and specifically will not limit any liability for gross negligence, intentional tortious or unlawful conduct or damages for strict liability that may not be limited by law.
12.1 Government Use. If Licensee is part of or procuring the Software on behalf of an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software is restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Software is "commercial computer software" and "commercial computer software documentation." In accordance with such provisions, any use of the Software by the Government shall be governed solely by the terms of this Agreement.
12.2 Independent Contractors. The Parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency between the Parties. Neither Party will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent.
12.3 Assignment. This Agreement shall be binding and inure to the benefit of the Parties hereto and their respective permitted successors and assigns. Neither this Agreement nor any rights, obligations or licenses granted hereunder may be assigned, transferred, delegated or novated by Licensee without the prior written consent of Licensor, which consent will not be unreasonably withheld or delayed. For the avoidance of doubt, a Change of Control and Merger involving Licensee is considered to be an assignment under this Agreement. Licensor may freely transfer, in whole or part, this Agreement and its rights and obligations hereunder.
12.4 Modifications. Any amendment of this Agreement must be in writing and signed by both parties. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by a written waiver by a duly authorized representative. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
12.5 Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the United States and the State of North Carolina, excluding rules governing conflict of law and choice of law. The federal and state courts within North Carolina shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement. Each party hereto expressly consents to the personal jurisdiction of, and venue in, such courts and service of process being affected upon it by registered mail and sent to the address set forth on the signature page (if any) or the Quote. The Parties agree that the UN Convention on Contracts for the International Sale of Goods (Vienna, 1980) and the Uniform Computer Information Transaction Act or similar federal or state laws or regulations shall not apply to this Agreement nor to any dispute or transaction arising out of this Agreement. The Party prevailing in any dispute under this Agreement shall be entitled to its costs and legal fees.
12.6 Severability. If any provision of this Agreement is deemed contrary to applicable law or unenforceable by a court of competent jurisdiction, the provision will be severed from the Agreement and all remaining provisions will continue in full force.
12.7 Entire Agreement. This Agreement including any website links, Attachments, and Quotes is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. This Agreement and Quote expressly supersedes: (a) any terms or conditions stated in a Licensee purchase order or similar document, including any electronic invoicing portals, RFP and vendor registration processes, whether submitted or executed before or after the applicable Quote and any such document shall be for administrative purposes only and shall have no legal effect; and (b) any other contemporaneous or prior agreements or commitments regarding the Software or the other subject matter of this Agreement. For the avoidance of doubt, this Agreement will not supersede any non-disclosure agreement entered into by the parties governing information exchanged prior to Licensee's use of the Software or for purposes unrelated to this Agreement. Notwithstanding the foregoing, Licensor may, from time to time, update this Agreement with New Releases of the Software and such version will then be applicable.
12.8 Headings. Both Parties have had an opportunity for legal review of this Agreement. The Agreement will not be construed in favor of or against either Party by reason of authorship. The headings used in this Agreement are for convenience only.
12.9 Notices. Any and all notices, requests, demands and other communications required or otherwise contemplated to be made under this Agreement shall be in writing and in English and shall be deemed to have been duly given, (a) if delivered personally, when received; (b) if transmitted by facsimile, upon receipt of a transmittal confirmation; (c) if sent by certified mail, return receipt requested, postage prepaid, on the date indicated on the return receipt; (d) if by international courier service, on the delivery date as may be confirmed to the sender by such courier service; or (e) if by E-mail, when the recipient, by an email sent to the email address for the sender as specified on the Quote or by a notice delivered by another method in accordance with this Section, acknowledges having received that email, with an automatic "read receipt" not constituting acknowledgment of an email for purposes of this Section. All such notices, requests, demands and other communications shall be addressed as specified on the Quote.
12.10 Counterparts and Execution. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. An originally executed version of this Agreement, that is delivered by one Party to the other Party, as evidence of signature, by facsimile, or by electronic mail after having been scanned as an image file (including, Adobe PDF, TIF, etc. or an electronic signature) shall, for all purposes hereof, be deemed an original signature and neither Party shall have the right to object to the manner in which the Agreement was executed as a defense to the enforcement of the Agreement.
12.11 Export. The Software is subject to certain export restrictions of the United States Government. If Licensee is (1) in a country to which export from the United States is restricted for anti-terrorism reasons, or a national of any such country, wherever located, (2) in a country to which the United States has embargoed or restricted the export of goods or services, or a national of any such country, wherever located, or (3) a person or entity who has been prohibited from participating in United States export transactions by any agency of the United States Government, then Licensee may not install, download, access, use, or license the Licensor Product. By entering into this Agreement, Licensee warrants and represents to Licensor that (x) Licensee does not match the criteria set forth in (1), (2), or (3) above, (y) Licensee will not export or reexport the Licensor Product to any country, person, or entity subject to U.S. export restrictions, including those persons and entities that match the criteria set forth in (1), (2), or (3) above, and (z) neither the United States Bureau of Industry and Security, nor any other U.S. federal agency, has suspended, revoked, or denied Licensee's export privileges.
12.12 Force Majeure. If during the Term of this Agreement, there occurs a Force Majeure Event (a fire, storm, flood, adverse weather conditions, explosions, acts of God, terrorism or the threat thereof, nuclear, chemical or biological contamination, compliance with any law, governmental controls, restrictions or prohibitions, general strikes, lockouts, industrial action or employment dispute, protests, public disorder, general interruptions in communications or power supply, failure or malfunction of computer systems or any other event or circumstance beyond the reasonable control of Licensor and not caused by Licensor) which prevents Licensor from performing under this Agreement, Licensor shall have the right, exercisable by written notice to Licensee within five (5) business days of the date of the Force Majeure Event, to extend any period for Licensor's performance hereunder by a period of time equal to that time that Licensor reasonably anticipates that it will be unable to perform.
12.13 Controlling Language. Regardless of any language into which this Agreement may be translated, the official, controlling and governing version of this Agreement shall be exclusively the English language version. This Agreement has been drawn up in English at the express wish of the parties. Le present contrat a ete redige en anglais a la demande expresse des parties.