Last updated on: November 1st, 2019.
This license is applicable for the self-hosted Webhook Relay server “Transponder”.
For all purposes of this Agreement, the terms defined below, when used with initial capital letters, will have the meanings set forth below. All terms defined elsewhere in this Agreement (including on the Cover Page) will have the meanings ascribed to them as set forth herein.
(a) “Confidential Information” means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed or made available by either party (“Disclosing Party”) that Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other party (“Receiving Party”); provided, however, that Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, products and services shall be deemed Confidential Information of Disclosing Party even if not so marked or identified. The Licensor Technology is the Confidential Information of Licensor. Notwithstanding the foregoing to the contrary, information will not be deemed “Confidential Information” if such information: (i) is known to Receiving Party prior to receipt from Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to Disclosing Party and without violation of applicable law; (ii) becomes known (independently of disclosure by Disclosing Party) to Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to Disclosing Party and without violation of applicable law; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by Receiving Party; or (iv) is independently developed by Receiving Party without use of or reference to Disclosing Party’s Confidential Information.
(b) “Cover Page” means the first page(s) of this Agreement, containing detailed information with respect to Customer and the License and bearing the signatures of the parties.
(c) “Documentation” means the user manuals and operator instructions provided by Licensor to Customer in conjunction with the Licensed Software. For the avoidance of doubt, the Documentation includes the Software Specifications.
(d) “Effective Date” means the date set forth on the Cover Page.
(e) “Force Majeure Event” means an unforeseeable event, or a series of related unforeseeable events, that is outside the reasonable control of the party affected (including without limitation failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars).
(f) “License” means the license granted by Licensor to Customer as provided in Section 2(a).
(g) “License Fee” means the License Fee set forth on the Cover Page.
(h) “Licensed Software” means the proprietary computer software program(s) identified as “Licensed Software” on the Cover Page, (i) including any Updates, (ii) excluding any Open Source Software Linux distribution packaged around the same and (iii) which does not constitute a New Version.
(i) “Licensor Technology” means the Licensed Software and the Documentation.
(j) “Minimum Term” means the period set out on the Cover Page and beginning on the Effective Date.
(k) “New Version” means any new version of the Licensed Software which from time to time is publicly marketed and offered for purchase by Licensor in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.
(m) “Person” means an individual, corporation, partnership, limited liability company, limited liability partnership, syndicate, person, trust, association, organization or other entity.
(n) “Software Specifications” means the specifications for the Licensor Software set forth on Licensor’s website (https://webhookrelay.com) from time to time.
(o) “Updates” means updates, upgrades, bug fixes and improvements to the Licensed Software that Licensor makes available to its other customers of the Licensed Software for no additional charge.
(a) License Grant. Subject to the terms and conditions of this Agreement, Licensor hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable limited right and license, during the Term, as follows:
- (i) To install and use the Licensed Software in object code form only as delivered pursuant to this Agreement, and consistent with the Documentation, solely for Customer’s internal business purposes;
- (ii) To make one (1) additional copy of the Licensed Software and Documentation for back-up or archival purposes; and
- (iii) To use the Documentation as reasonably necessary for Customer’s internal business purposes in connection with Customer’s use of the Licensed Software as permitted hereunder.
(b) Reserved Rights. Any rights not expressly granted in Section 2(a) are expressly reserved by Licensor. Without limitation of the foregoing, Licensor reserves the right to license the Licensor Technology to others on such terms as Licensor may establish in its sole discretion. Customer acknowledges that no exclusive right of any kind is granted to Customer by the terms of this Agreement. Customer will promptly notify Licensor in writing of any infringement of Licensor’s intellectual property rights that come to the attention of Customer.
(c) Limitations and Restrictions. It is expressly understood and agreed that the License is subject to the following limitations and restrictions:
- (i) Customer may not use the Licensed Software except for Customer’s internal business purposes in accordance with this Agreement.
- (ii) Customer may not use the Licensed Software for an amount of buckets, inputs, outputs, tunnels or other internal service resources, or install the Licensed Software on a number of nodes, exceeding the amounts for each set forth on the Cover Page.
- (iii) Customer may not distribute the Licensor Technology, in whole or in part, or any copy thereof, by transfer, lease, loan or any other means, or make it available for use by others in any manner, including without limitation by any time-sharing, service bureau or similar arrangement.
- (iv) Customer will not remove, obliterate, obscure, or conceal the proprietary notices or legends which appear on the Licensor Technology, and will reproduce such notices or legends on all copies of the Licensor Technology or of any part of the Licensor Technology.
- (v) Customer has no right to obtain or have access to the source code or systems and programming documentation of the Licensed Software or any part thereof. The Licensor Technology and all information related thereto will be subject to Customer’s obligations of confidentiality under Section 9(b).
- (vi) Customer may not alter, modify, adapt or create derivative works from the Licensed Software or the Documentation. Customer may not decompile, recompile, disassemble, translate, update, modify, merge, adapt, translate, copy or otherwise reverse engineer the Licensed Software or any part thereof.
- (vii) Customer may not use the Licensed Software (A) in violation of applicable local, state, national and international laws and regulations or (B) to create any product or service competitive to the Licensed Software.
- (viii) Customer may not share or publish the results of any benchmarking or performance testing, and/or compatibility analysis of the Licensed Software without Licensor’s prior written consent.
3. Delivery; Support
(a) Delivery. Within ten (10) days from the Effective Date, Licensor will make available to Customer for download (a) a copy of the Documentation and (b) a machine-readable copy of the Licensed Software. The Licensor Technology will be deemed accepted by Customer upon download.
(b) Support. Licensor will provide Updates to Customer. Customer will install all Updates as soon as reasonably practicable after receipt of the same. Licensor will also perform the support services set forth on Exhibit A attached hereto. Except as otherwise set forth on Exhibit A or in a Statement of Work (as defined below), Customer will be solely responsible for the installation and use of the Licensed Software.
4. Professional Services
From time to time, the parties may mutually agree to the performance of certain professional services (“Professional Services”). Any such services will be described on a statement of work that is executed by an authorized representative of each party and expressly references, and is governed by, this Agreement (each, a “Statement of Work”). Professional Services will be provided in accordance with the provisions of this Agreement and the applicable Statement of Work. Each Statement of Work will contain a description of the tasks to be performed, a schedule of payments and payment terms (if applicable) and any additional terms and conditions the parties wish to include. Licensor will exercise due skill, care and diligence in the performance of the Professional Services set forth in a Statement of Work and will carry out its activities in a professional and workmanlike manner, using appropriately qualified, skilled and experienced personnel as can be reasonably expected given the scope, type, nature and complexity of the services described in the applicable Statement of Work. In the event of a conflict between any term or condition of this Agreement and any Statement of Work, the applicable term or condition of this Agreement will govern unless and solely to the extent that the parties expressly state in such Statement of Work that they intend to override the terms and conditions of this Agreement. Upon execution of any Statement of Work, the terms and conditions of such Statement of Work are hereby incorporated into and become part of this Agreement.
(a) License Fee. In consideration of the License granted under Section 2(a), Customer will pay to Licensor the License Fee. Unless otherwise agreed in writing by the parties, for each Renewal Term (as defined below) the License Fee payable will be the then-prevailing rate for the license for the Licensed Software for the applicable Renewal Term at the tier and capacity set forth on the Cover Page or as otherwise agreed by the parties in writing at least ninety (90) days prior to the beginning of the applicable Renewal Term.
(b) Payment. The License Fee will be due and payable by electronic / wire transfer in accordance with Licensor’s instructions, thirty (30) days after the Effective Date and the start of the applicable Renewal Term. In addition, Customer will pay to Licensor the fees for any Professional Services as set forth in the applicable Statement of Work. Customer will pay the License Fee and any fees for Professional Services in U.S. Dollars.
(c) Taxes. Customer will be responsible for the payment of all sales, use, personal property or other taxes arising from or relating to the License, the receipt of Professional Services, or Customer’s possession and use of the Licensor Technology, other than taxes based on or measured by Licensor’s net income. Customer will pay such taxes directly or, if Licensor pays or is required to pay any such taxes, Customer will promptly reimburse Licensor therefor.
(d) Finance Charge. Any payment not made when due hereunder will be subject to a finance charge in the amount of one and one-half percent (1.5%) for each month or part of a month that payment is overdue, but not greater than the highest rate of interest allowed by applicable law, however, nothing herein will limit Licensor’s right to terminate this Agreement under Section 10(b) hereof.
(e) Costs of Collection. In the event that Licensor retains a collection agent or undertakes legal action to collect amounts not paid by Customer when due under this Agreement, Customer will reimburse Licensor for all reasonable costs incurred (including reasonable attorneys’ fees) in collecting past due amounts.
6. Other Obligations of Customer
(a) Installation, Maintenance and Other Services. Except as otherwise provided in a Statement of Work or separate service or maintenance agreement between the parties, Customer will be solely responsible for its installation and use of the Licensed Software, and Licensor will have no obligation or responsibility with respect thereto.
(c) Notice of Certain Events. Customer agrees to give prompt written notice to Licensor if at any time Customer becomes aware that any person has received, used, accessed or had access to any of Licensor’s Confidential Information in violation of Licensor’s rights therein.
(a) Each of Licensor and Customer warrants to the other that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement. Licensor warrants that, to the best of Licensor’ knowledge, it has sufficient right and authority to grant to Customer all licenses and rights granted under this Agreement.
(b) Licensor further grants to Customer a limited warranty that it will use commercially reasonable efforts to ensure that the Licensed Software (a) is provided free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs, (b) incorporates security features reflecting the requirements of good industry practice and (c) will function materially in conformance with the specifications set forth in the Documentation.
(c) The warranties contained in Section 7(b) are subject to the following qualifications:
- (i) Licensor does not warrant that the Licensed Software will meet the Customer’s requirements or expectations, or that the Licensed Software will operate uninterrupted or error-free, or that any or all Licensed Software errors will be corrected or are correctable.
- (ii) Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, Licensor gives no warranty or representation that the Licensed Software will be entirely secure.
- (iii) Customer acknowledges that the Licensed Software is only designed to be compatible with that software specified as compatible in the Software Specifications; and Licensor does not warrant or represent that the Licensed Software will be compatible with any other software.
- (iv) Customer acknowledges that any Open Source Software provided by Licensor is provided “as is” and expressly subject to the disclaimer in Section 7(e).
- (v) Customer acknowledges that Licensor will not provide any legal, compliance, financial, accountancy or taxation advice under this Agreement or in relation to the Licensed Software; and, except to the extent expressly provided otherwise in this Agreement, Licensor does not warrant or represent that the Licensed Software or the use of the Licensed Software by Customer will not give rise to any legal liability on the part of Customer or any other Person.
(d) For any breach of the warranty contained in this Section, Customer’s sole and exclusive remedy, and Licensor’s entire liability and obligation will be, at Licensor’s election, to repair or replace the Licensed Software, or if Licensor is unable to repair or replace the Licensed Software after using commercially reasonable efforts, to refund the fees paid less the portion of the license fees attributable to the period over which Customer actually used the Licensed Software, assuming full amortization of the Licensed Software over a period of three (3) years.
(e) Other than as expressly set forth above, Licensor does not make any express or implied warranties, conditions, or representations to Customer or any other party with respect to the Licensed Software or any services provided hereunder or otherwise regarding this Agreement, whether oral or written, express, implied, or statutory. Without limiting the foregoing, any implied warranty or condition of merchantability, title, noninfringement, or fitness for a particular purpose are expressly excluded and disclaimed.
8. Intellectual Property Rights indemnity
(a) By Licensor. Licensor will defend or settle any third-party suit or proceeding brought against Customer based upon a claim that Customer’s use of the Licensed Software as permitted under this Agreement constitutes an infringement of any existing and valid copyright, patent, trademark or trade secret (any such suit or proceeding, a “Claim”); provided that Customer (i) promptly notifies Licensor in writing of such claim, (ii) promptly gives Licensor the right to control and direct the investigation, preparation, defense and settlement of such Claim with counsel of Licensor’s own choosing (provided that Customer will have the right to reasonably participate, at its own expense, in the defense or settlement of any such Claim), and (iii) gives assistance and full cooperation for the defense of same. Subject to Customer’s compliance with the foregoing requirements, Licensor will pay all liabilities, damages, losses, costs and expenses awarded by a court of competent jurisdiction against Customer in such Claim or amounts payable pursuant to a settlement agreed to by Licensor, but will not be responsible for any cost, expense or compromise incurred or made by Customer without Licensor’s prior written consent or for any lost profits or other damage or loss suffered by Customer. Any compromise or settlement of any such Claim will require the prior written consent of both parties, such consent not to be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, the foregoing defense and indemnity obligations will not apply to any Claim based upon or arising from (A) use of the Licensed Software in a manner for which it was not designed or not in accordance with applicable Documentation, (B) any modification of the Licensed Software by any party other than Licensor, (C) any use of the Licensed Software in combination with hardware or software not provided or authorized by Licensor, or (D) use of the Licensed Software, when use of a subsequent Update which Licensor has made commercially available would have avoided such infringement.
(b) By Customer. Except with respect to matters for which Licensor is liable pursuant to Section 8(a), Customer hereby agrees to indemnify Licensor and its affiliates, and hold it and them harmless, against any liabilities, damages, losses, costs and expenses that may be suffered by Licensor, and any claims that may be made against Licensor or any Licensor affiliate by any Person, as a direct or indirect result of the use by Customer of the Licensor Technology, or of any breach of this Agreement by Customer; provided that Licensor (i) promptly notifies Customer in writing of such claim (ii) promptly gives Customer the right to control and direct the investigation, preparation, defense and settlement of such claim with counsel of Customer’s own choosing (provided that Customer will have the right to reasonably participate, at its own expense, in the defense or settlement of any such claim); and (iii) gives assistance and full cooperation for the defense of same. Subject to Licensor’s compliance with the foregoing requirements, Customer will pay all liabilities, damages, losses, costs and expenses awarded by a court of competent jurisdiction against Licensor in such claim or amounts payable pursuant to a settlement agreed to by Customer, but will not be responsible for any cost, expense or compromise incurred or made by Licensor without Customer’s prior written consent or for any lost profits or other damage or loss suffered by Customer. Any compromise or settlement of any such claim will require the prior written consent of both parties, such consent not to be unreasonably withheld, conditioned or delayed.
(c) Additional Infringement Remedy. If any Licensor Technology is in the opinion of Licensor likely to, or does, become the subject of a claim of infringement, Licensor may, at its sole option, procure for Customer the right to continue using the Licensor Technology, modify the affected Licensor Technology to become non-infringing, or replace it with non-infringing Licensor Technology. If Licensor is not reasonably able to so modify or replace the Licensor Technology or otherwise secure for Customer the right to continue using the Licensor Technology, Licensor may terminate this Agreement and, upon return to it of all copies of the Licensed Software and Documentation licensed hereunder, refund to Customer the amount of the License Fee actually paid which relates pro-rata to the remaining period of the then-current term.
(d) Limitation of Liability.
- (i) EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8, LICENSOR’S AND ITS AFFILIATES’ SOLE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, FOR ANY BREACH OF WARRANTY OR OTHER MATTER ARISING UNDER OR RELATED TO THIS AGREEMENT WILL BE THE REMEDIES AVAILABLE PURSUANT TO LICENSOR’S WARRANTY IN SECTION 7.
- (ii) NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EXCEPT FOR LIABILITY ARISING FROM (A) CLIENT’S USE OF THE LICENSED SOFTWARE OTHER THAN EXPRESSLY PERMITTED BY SECTION 2 (LICENSE), (B) EITHER PARTY’S BREACH OF SECTION 9 (PROPRIETARY RIGHTS AND CONFIDENTIALITY), AND (C) A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8 (INDEMNIFICATION), UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO LICENSOR UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
- (iii) THE PARTIES HERETO AGREE THAT, NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, EXCEPT FOR LIABILITY ARISING FROM (A) CLIENT’S USE OF THE LICENSED SOFTWARE OTHER THAN EXPRESSLY PERMITTED BY SECTION 2 (LICENSE), (B) EITHER PARTY’S BREACH OF SECTION 9 (PROPRIETARY RIGHTS AND CONFIDENTIALITY), AND (C) A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8 (INDEMNIFICATION), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.
9. Proprietary Rights and Confidentiality
(a) Proprietary Rights. The Licensor Technology and all proprietary rights therein, including, without limitation, any and all intellectual property rights with respect to any of the Licensor Technology, and all improvements, enhancements or modifications thereto, or derivatives thereof, are and will be and remain at all times the property of Licensor, and Customer will have no right, title or interest therein except as expressly provided herein.
(b) Confidentiality. Receiving Party acknowledges that the Confidential Information constitutes valuable trade secrets and proprietary information of Disclosing Party, and Receiving Party agrees that (i) it shall use the Confidential Information of Disclosing Party solely to perform its obligations or exercise its rights under this Agreement and (ii) it will not disclose or make available, or permit to be disclosed or made available, the same directly or indirectly, to any third party without Disclosing Party’s prior written consent, except as otherwise permitted hereunder. Nothing in this Section 9(b) is intended to restrict or otherwise limit the exercise by a party of the rights and licenses granted to it under this Agreement; provided that Receiving Party uses reasonable measures to protect the confidentiality and value of Disclosing Party’s Confidential Information. Notwithstanding any provision of this Agreement, Receiving Party may disclose Disclosing Party’s Confidential Information, in whole or in part (A) to Receiving Party’s employees, independent contractors, officers and directors, and its professional advisors (e.g., attorneys and accountants) who have a need to know and are legally bound by written agreements, or in the case of professional advisors ethical obligations, that contain enforceable confidentiality and use restrictions consistent with those of this Agreement; and (B) as required by law (in which case Receiving Party shall provide Disclosing Party with prior written notification thereof, shall provide Disclosing Party with the opportunity to contest such disclosure, and shall use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Receiving Party agrees to exercise due care in protecting Disclosing Party’s Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section 9(b), Disclosing Party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Receiving Party shall promptly notify Disclosing Party in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement. Upon the termination of this Agreement, Receiving Party agrees to promptly return to Disclosing Party or destroy all Confidential Information of Disclosing Party that is in the possession of Receiving Party and to certify the return or destruction of all such Confidential Information and embodiments.
10. Term and Termination
(a) Term. The initial term of this Agreement will commence on the Effective Date and extend until the end of the Minimum Term, at which point this Agreement will automatically renew for subsequent periods of equal length to the Minimum Term (each, a “Renewal Term”, and together with the Minimum Term, the “Term”), unless either party provides written notice to the other party of its intent to not renew this Agreement at least ninety (90) days prior to the end of the initial term or the then-current Renewal Term, except in the event of the earlier termination of this Agreement in accordance with its terms. All Statements of Work will terminate upon the expiration or earlier termination of this Agreement.
(b) Termination by Licensor. Licensor may terminate this Agreement and/or any Statement Work by written notice to Customer, in the event of the occurrence of any of the following: (i) if Customer violates the confidentiality provisions of Section 9(b) of this Agreement, or uses, reproduces, distributes or sublicenses any of the Licensed Software or the Documentation in any manner not authorized by the License granted herein; (ii) if Customer fails to observe or perform any term or condition of this Agreement (other than as set forth in clause (i)) and does not cure such failure within thirty (30) days after written demand by Licensor; or (iii) if Customer makes a general assignment for the benefit of creditors, or files a voluntary petition in bankruptcy or for reorganization or arrangement under the bankruptcy laws, or if a petition in bankruptcy is filed against Customer and is not dismissed within thirty (30) days after the filing, or if a receiver or trustee is appointed for all or any part of the property or assets of Customer.
(c) Termination by Customer. Customer may terminate this Agreement and/or any Statement of Work by written notice to Licensor, if Licensor fails to observe or perform any term or condition of this Agreement and does not cure such failure within ninety (90) days after written demand by Customer.
(d) Rights and Obligations on Termination. Upon the expiration or termination of this Agreement, (i) the License granted under this Agreement will terminate, and Customer will immediately cease all use of the Licensor Technology and (ii) Receiving Party will, at Disclosing Party’s option, return to Disclosing Party all copies, notes, memoranda and other tangible embodiments of Disclosing Party’s Confidential Information in its possession or under its control, or destroy all such tangible embodiments and certify such destruction in writing to Disclosing Party. Upon such expiration or termination, all rights and obligations of the parties under this Agreement will cease, except that Customer will remain obligated to make any payment due under this Agreement and payment for any fees that accrued under any Statement of Work prior to the date of such expiration or termination. Notwithstanding anything to the contrary herein, the following Sections will survive any expiration or termination of this Agreement: Sections 1, 5, 6(b), 7(3), 8, 9, 10(d) and 11.
(e) The termination of this Agreement or any license will not limit either party from pursuing any other remedies available to it, including injunctive relief.
(a) Entire Agreement. This Agreement (including any Statements of Work) contains the entire understanding of the parties about its subject. It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations.
(b) Amendment. This Agreement and each Statement of Work may not be amended or modified, in whole or part, except by a writing signed by duly authorized representative of both parties.
(c) Waivers. No provision or part of this Agreement or remedy hereunder may be waived except by a writing signed by a duly authorized representative of the party making the waiver. Any such waiver will be narrowly construed to apply only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
(d) Relationship of Parties. Nothing in this Agreement will be construed to place Licensor and Customer in an agency, employment, franchise, joint venture, or partnership relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties. Neither party will represent to the contrary, either expressly, implicitly or otherwise.
(e) Assignment. Neither party may assign this Agreement without the consent of the other party; provided, that, Licensor may assign this Agreement without such consent to (a) its affiliate or (b) a successor to all or substantially all of the assets or business of Licensor to which this Agreement relates, whether by merger, purchase or otherwise. Any attempt by either party to assign or transfer this Agreement without the other party’s consent will be null and void.
(f) Severability. In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, to the extent consistent with the intent of the parties as of the Effective Date. If any provision or part of this Agreement will, to any extent, be or become invalid, illegal or unenforceable, the remainder of this Agreement will continue in effect, and every other provision of this Agreement will remain valid and enforceable to the full extent permitted by applicable law. In such event, the invalid or unenforceable provision will be reformed only to the extent necessary to make it enforceable, and such provision as so reformed will continue in effect, to the extent consistent with the intent of the parties as of the Effective Date.
(g) Notices. All notices under or related to this Agreement will be in writing and will reference this Agreement. Notices will be deemed given when: (i) delivered personally; (ii) sent by email or other electronic means, with receipt confirmed in writing (email to suffice) by the recipient; (iii) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) day after deposit with a commercial overnight carrier, with written verification of receipt. All notices sent electronically / via email from the Customer to the Licensor will be sent to an email address email@example.com. All other communications will be sent to the addresses set forth on the Cover Page or such other addresses designated pursuant to this Section 11(g).
(h) Force Majeure. Neither party will be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from a Force Majeure Event affecting such party. In such circumstances the time for performance will be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for ninety (90) days, the unaffected party may terminate this Agreement by giving ten (10) days’ written notice to the affected party.
(i) Publicity. Neither party will disclose the terms of this Agreement without prior written consent from the other party. Customer, however, agrees that its name and any logo may be included by Licensor in any published list of Licensor’s licensees on its website and in its other marketing materials.
(j) Governing Law. This Licence and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
(k) Jurisdiction. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
(l) Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which will constitute but one and the same instrument.
Support services consist of Error Correction and Online Support. Customer may submit a ticket for support services by sending an e-mail to firstname.lastname@example.org Licensor will (a) respond to any Online Support request within one (1) business day of receipt and (b) exercise commercially reasonable efforts to correct any Error reported by Customer in the current release of Licensed Software by providing a Workaround or Fix.
For purposes of this Exhibit A, the above capitalized words will have the following meanings ascribed to them:
- “Error” means an error in Licensed Software which significantly degrades the Licensed Software as compared to Licensor’s published performance specifications.
- “Error Correction” means the use of commercially reasonable efforts to correct Errors.
- “Fix” means the repair or replacement of object or executable code versions of Licensed Software to
remedy an Error.
- “Online Support” means technical support assistance provided by Licensor to Customer during normal business hours concerning the installation and use of Licensed Software.
- “Workaround” means a change in the procedures followed or data supplied by Customer to avoid an Error without substantially impairing Customer’s use of Licensed Software.