License Terms

Version 2.1Last updated: 22 September 2020
This Software License Agreement (the “Agreement”) is entered into as of ____________ (the “Effective Date”), by and among PM Labs, Inc. (the “Company”), a Delaware corporation, whose primary place of business is at 340, South Lemon Ave #6212, Walnut, CA 91789 and <customer company name> a (the “Licensee” ) whose primary place of business is at <customer address>. The Company and the Licensee are hereinafter sometimes referred to collectively as the “Parties” and individually as a “Party.”
Whereas, Company is a provider of its state-of-the-art solutions, AGARA, an intelligent application software (“Agara”) that allows customers to automate and/or improve efficiency of business communication operations.
Wheres, Licensee desires to license the Software from the Company and the related Services, and the Company desires to grant a license to the Software and provide the related Services pursuant to the terms and conditions hereof.
WHEREAS, the Parties hereto fully intend that all of their activities hereunder are fully compliant with all applicable laws.
Now, therefore, in consideration of the agreements contained below, the Parties hereby agree as follows:
  1. For purposes of this Agreement, the following terms will have the meanings ascribed to them below.
    1. “Affiliate” means, with respect to any Person as of the date on which, or at any time during the period for which, the determination of affiliation is being made, any other Person: (a) directly or indirectly controlling the party in question, (b) directly or indirectly being controlled by the party in question, or (c) being controlled by another Party that also controls the party in question. As used in the preceding sentence, “control”, “controlled,” and “control” as used with respect to any Party mean, through direct or indirect beneficial ownership of more than 50% of the voting or equity interest in another Party, the power to direct or cause the direction of the management and policies of such other Party.
    2. “Aggregated Anonymous Data” means data submitted to, collected by, or generated by Company in connection with Customer’s use of the Software, but only in aggregate, anonymized form which can in no way be linked specifically to the clients of the Customer or the Customer.
    3. “API” means application program interface.
    4. “Application” means the suite of integrated applications known as Agara or other applications made available to Licensee by Company under this Agreement.
    5. “Authorized User” means any person that the Licensee allows to use the software, including employees, contractors, customers, service providers and agents of Licensee, who agree to comply with and be bound by the terms and conditions of this Agreement.
    6. “Company Service Level Agreement” means the service level agreement identifying the uptime and support availability for the Software as described in as Exhibit B, attached hereto.
    7. “Confidential Information” means any information disclosed by one Party to the other, which, (i) if in written, graphic, machine readable or other tangible form is marked “Confidential” or “Proprietary” or which, if disclosed orally or by demonstration, is identified at the time of disclosure as confidential and reduced to a writing marked “Confidential” and delivered to the Receiving Party (as defined below) within thirty (30) days of such disclosure; or (ii) by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as confidential, including without limitation the terms, conditions, fees and prices set forth in this Agreement.  Notwithstanding any failure to so identify them, all technology or proprietary information underlying the Software shall be deemed Confidential Information of Company, and the Licensee Data and the existence of this Agreement shall be deemed Confidential Information of Licensee.
    8. “Agara” has the meaning ascribed to it in the first recital.
    9. “Documentation” means any documentation provided by Company for use with the Software under this Agreement.
    10. “Excluded Data” is described in Section 2.3 herein.
    11. “Fees” means the fees charged Licensee for the use of the Software and the Applications and other Services, as set forth in the Service Order entered into between the Licensee and the Company from time to time.
    12. “Intellectual Property Rights” means all rights in, to, or arising out of: (i) any U.S., international or foreign patent or any application therefore and any and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology and technical data; (iii) copyrights, copyright registrations, mask works, mask works registrations, applications, moral rights, trademarks, and rights of personality, privacy and likeness, whether arising by operation of law, contract, license or otherwise; and (iv) any other similar or equivalent proprietary rights anywhere in the world.
    13. “Licensee Data” is described in Section 2.3 herein.
    14. “Level of Services” or “Service Levels” means the levels of services described in Exhibit B.
    15. “Marks” means a Party’s corporate or trade name, trademark(s), logo(s), domain names or other identification of such Party.
    16. “Node(s)” means virtual machines, physical servers, storage devices, network devices that will be managed through Agara
    17. “Platform” means Agara as more fully described in Exhibit A, attached hereto, including the interface created by Company where the Licensee and Authorized Users can standardize and automate IT processes through the Company’s unique Cloud as Code approach, providing unified framework to effectively operate and manage infrastructure, application and services, and all changes, corrections, bug fixes, enhancements, updates and other modifications thereto, whether made by or on behalf of Company, Licensee, or any third party.
    18. “Services” mean the services provided by the Company to the Licensee in conjunction with the Software including the Support Services, as more fully described in Exhibit A, attached hereto.
    19. “Service Order” or “SO” means the order form approved by Company pursuant to which Licensee orders access to the Software and use of the Application and the Services.
    20. “Software” means Company’s unique, proprietary Agara software, and all changes, corrections, bug fixes, enhancements, updates and other modifications thereto, whether made by or on behalf of Company, Licensee, or any third party.
    21. “Third Party” or “Third Parties” means any individual(s), corporation(s), association(s), government agencies, or other entity(ies) that is/are not a Party.
  2.  Services
    1. The Company shall provide the Services described herein at the Fees described herein at the Service Levels described herein.
    2. Service Levels. The Service Levels are described in Exhibit B
    3. Ownership of Data. As between the Parties, all data, confidential or proprietary information or materials (i) provided to the Company by the Licensee or (ii) that the Company collects, processes, generates or uses for or on behalf of the Licensee in providing the Services or (iii) collected, processed, generated or used by the Company or the Company's personnel in providing the Services, in each case excluding metadata from the Licensee's use of the Services and any derivatives of any of such data (including Aggregated Anonymous Data, vector representations, machine learning models and algorithms (the “Excluded Data”)) (collectively the "Licensee Data") will at all times remain the sole property of the Licensee, and the Company will not have or obtain any rights to the Licensee Data; provided however that Company shall retain all right title and interest in the Excluded Data. For purposes of this Agreement, "Licensee Data" includes any information in any media or format relating to an identified or identifiable individual (including name, address, phone number, fax number, email address, Social Security number, date of birth, financial account and credit card information, personal health information, IP addresses, or other identifiers used by the Licensee, the Company, or Third Party) ("Personal Information").
    4. Licensee Data Processing. The Company will process the Licensee Data only for purposes of providing the Services and otherwise in accordance with the Licensee's express written instructions, in compliance with any applicable Laws that relate to Personal Information, and in accordance with industry standards, and the Company will not make any other use of the Licensee Data (including for purposes of data mining, marketing or search) without the Licensee's written consent.
    5. Service Orders. From time to time, Company and Licensee may execute one or more service orders, substantially in the form attached hereto as Exhibit C, that describe the services that the Company will provide to Licensee (each an “SO”). Each SO will expressly refer to this Agreement, will form a part of this Agreement, and will be subject to the terms and conditions contained herein. A SO may be amended only by written agreement of the Company and the Licensee.
  3. Responsibilities and Representations of Company
    1. Company shall provide the Services under the terms and conditions of this Agreement as more fully described in Exhibit A, attached hereto.
    2. Company may in its sole discretion modify, enhance or update or otherwise change the Software provided that the Services are not materially affected.
    3. Company shall ensure availability of the Software and provide technical support of the Software in accordance with the Company Service Level Agreement as more fully described in Exhibit C, attached hereto.
    4. Company represents and warrants that (i) it has the legal right to enter into this Agreement and perform its obligations hereunder, and (ii) the performance of its obligations and the provision of the Software and the delivery of the Application and Services to Licensee will not violate any applicable laws or regulations or cause a breach of any agreements between Company and any third parties. In the event of a breach by Company of the foregoing warranties, Licensee’s sole remedy is termination of this Agreement upon written notice to Company.
  4. Responsibilities of and representations of Licensee.
    1. The Licensee will cooperate in accurately providing the Company with the Licensee Data necessary for the Company to implement the Software.
    2. The Licensee will be responsible for obtaining and maintaining at Licensee’s expense all the necessary computer hardware, software, modems, connections to access and utilize the Software.
    3. Licensee acknowledges that access to the Software is to be limited to Authorized Users, whom License has screened and authorized to have access to the Software and to use the Application and the Services.  Licensee acknowledges that the user names and passwords given to Authorized Users are confidential and need to be carefully controlled and safely kept. Licensee shall indemnify and hold Company harmless from any claim or damage asserted against Company resulting from use of such user names and passwords.
    4. Licensee represents and warrants that (i) the performance of its obligations and use of the Software and the Application by its Authorized Users will not violate any applicable laws, or regulations, including without limitation any and all laws and regulations regarding the transfer of personal information of residents of the European Union outside the European Union, or (ii) cause a breach of any agreements with any third parties or unreasonably interfere with the use by other customers of the Software, the Application or the Company Services
    5. In the event of any breach by Licensee of any of the foregoing representations or covenants, in addition to any other remedies available at law or in equity, Company will have the right to suspend immediately Licensee’s access to the Software or use of the Application or any Services if deemed reasonably necessary by Company to prevent any harm to Company and its business. Company will provide notice to Licensee and an opportunity to cure, if practicable, depending on the nature of the breach. Once cured, Company will promptly restore Licensee’s access to the Software and use of the Application and the Services.
    6. Licensee covenants and agrees that its use of the Software, Application and Services will be in a manner consistent with this Agreement and with all applicable laws and regulations, including trade secret, copyright, trademark, and export control laws. Without limiting the generality of the foregoing, Licensee shall not, nor shall it permit or assist others, (i) to abuse or fraudulently use the Software, the Application or the Services; (ii) to process or permit to be processed the data of any third party that is not expressly authorized herein to access and use the Software, the Application or the Services; and (iii) to attempt to copy, reverse-engineer, decompile, disassemble, create a derivative work from, or otherwise attempt to derive the source codes of any part of the Company Technology.
  5. License Grant
    1. Subject to the terms and conditions of this Agreement, Company grants to Licensee a limited, non-exclusive, non-transferable, worldwide license, without the right to sublicense, to use and permit Authorized Users to use the Software in accordance with the terms and conditions of this Agreement during the Subscription Term as specified in this Agreement.
    2. License Restrictions. Licensee shall not, and shall not permit any third party to: (i) use the Sftware, Application or the Services except to the extent permitted in Section 6.1 and/or elsewhere herein; (ii) modify or create any derivative work of any part of the Software; (iii) permit any third parties to use the Software other than Authorized Users; or (iv) market, sublicense, publish, distribute, reproduce, assign, transfer, rent, lease or loan the Software.
    3. Reservation of Rights. Company reserves all rights to the Software not otherwise expressly granted in this Section 6
    4. Subscription License. Unless otherwise agreed to in writing by Company, the license granted herein is a subscription license.
  6. License to Company
    1. Limited Trademark License; Marketing Materials. Licensee hereby grants Company a royalty-free, non-exclusive, non-transferable, non-sublicensable, limited term license to use Licensee’s Marks solely for the purpose of aligning the appearance of the Software to Licensee’s branding and only as specifically authorized by, and subject to any restrictions stated in, this Agreement. Such license shall be limited to the duration of this Agreement.  During the Term of the Agreement, Company may include Licensee in any of Company’s user lists and testimonials, solely for the purpose of identifying Licensee as a user of Company, provided that in each such case Licensee shall have given its prior written consent, which consent may be rescinded at any time in Licensee’s sole discretion upon written notice to Company. Company shall not use any of Licensee’s Marks in any manner that Licensee, in its sole discretion, deems to be an explicit or implicit endorsement of Company, or which is likely to cause confusion as to Licensee’s relationship to Company’s Services.  Any such usage of the Licensee’s Marks is permissible only with Licensee’s prior written consent. Company’s use of Licensee’s Marks shall inure to the benefit of Licensee.  Licensee and Company acknowledge that the provisions of this paragraph do not convey any right, title or ownership interest in Licensee’s Marks to Company
  7. Payment; Taxes.
    1. Fees. In consideration for the license granted by Company under this Agreement, Licensee shall pay Company the fees in the amount set forth in the Service Order entered into between the Licensee and the Company from time to time (the “Fees”) in accordance with the terms set forth therein and herein. The Fees are non-refundable except as expressly provided in this Agreement.
    2. Taxes. Licensee shall, in addition to the other amounts payable under this Agreement, pay all applicable customs, duties, sales, use, value added or other taxes, federal, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement, excluding only taxes based on Company’s net income. Licensee agrees to indemnify, defend, and hold Company, its officers, directors, consultants, employees, successors and assigns harmless from all claims and liability arising from Licensee’s failure to report or pay any such taxes, duties or assessments.
    3. Payment Terms. All undisputed amounts payable to Company under this Agreement will be due within thirty (30) days from receipt of an invoice which will be raised by Company as per the timelines specified in the SO executed between the Company and the Licensee from time to time. Overdue payments will be subject to interest at the rate of 1.5% per month, or the maximum allowable under applicable law, whichever is less.
  8. Ownership
    1. Licensee. As between Licensee and Company, the Licensee shall retain all right, title and interest in and to the Licensee Data, Licensee’s Marks and all Intellectual Property Rights therein. Nothing in this Agreement will confer on Company any right of ownership or interest in the Licensee Data, Licensee’s Marks or the Intellectual Property rights therein.
    2. Company. As between Licensee and Company, Company shall retain all right, title and interest in and to the Excluded Data, the Software, any changes, corrections, bug fixes, enhancements, customizations, updates and other modifications thereto, and all Intellectual Property Rights therein, and as between the parties all such rights shall vest in and be assigned to Company including any modifications, derivations, enhancements, compilations or changes to or from any of the foregoing by or on behalf of Licensee in relation to Licensee’s use of the Software. Nothing in this Agreement will confer on Licensee any right of ownership or interest in the Software or the Intellectual Property rights therein.
  9. Limited Warranty.
    1. Scope of Limited Warranty. Company warrants to Licensee that during the Term, the Software will perform substantially in accordance with the terms of Company’s Documentation. The foregoing warranty shall not apply to problems (i) caused by factors outside of Company’s reasonable control; (ii) that result from any improper actions or inactions of Licensee or any third parties; or (iii) that result from Licensee’s data structure, operating environment or equipment.
    2. Disclaimer of Any Other Warranties. EXCEPT FOR THE EXPRESS, LIMITED WARRANTY PROVIDED IN THIS SECTION 9 OR ELSEWHERE IN THIS AGREEMENT, COMPANY MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, OR ANY OTHER ACCOMPANYING MATERIAL PROVIDED HEREUNDER. COMPANY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND OF UNINTERRUPTED OR ERROR-FREE SERVICE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SOFTWARE IS PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS.
  10. Term; Termination.
    1. Term. Unless earlier terminated as provided in this Section 10, this Agreement will have an initial term of three (3) years (the “Initial Term”), which shall commence as of the Effective Date , and shall thereafter automatically renew for additional periods of one (1) year unless Licensee provides written notice of its intention not to renew to the Company at least ninety (90) days prior to expiration of the current term (any such renewal term a “Renewal Term,” and together with the Initial Term, the “Term”)
    2. Subscription Term. Unless earlier terminated the Subscription Term shall commence on the Start Date set forth in the Service Order and shall continue for the Term or until the End Date set forth on the Service Order entered into between the Licensee and the Company from time to time (the “Subscription Term”).
    3. Termination
      1. By Either Party. This Agreement may be terminated by either Party upon delivery of written notice of termination to the other Party, as follows:
        1. Ninety Days before the end of a Term, effective on the last day of such Term;
        2. If the other Party fails to perform or observe any material term or condition in this Agreement and fails to cure such breach within thirty days after receipt of written notice of such breach from the non-breaching Party; or
        3. If the other Party (i) makes a general assignment for the benefit of creditors, (ii) admits in writing its inability to pay debts as they come due, (iii) voluntarily files a petition or similar document initiating any bankruptcy or reorganization proceeding, or (iv) involuntarily becomes the subject of a petition in bankruptcy or reorganization proceeding and such proceeding shall not have been dismissed or stayed within sixty (60) days after such filing.
      2. Effect of Termination. Upon termination of this Agreement, each Party shall promptly return, or at the other Party’s request, destroy (and provide confirmation of such destruction signed by a legal officer), all Confidential Information of the other Party (including without limitation the Licensee Data and the Documentation). Sections 1, 5, 8, 9, 10.3.2, 11-14 and 15 (as applicable) shall survive termination of this Agreement for any reason. All other rights and obligations of the Parties under this Agreement shall expire upon termination of this Agreement, except that all payment obligations accrued hereunder prior to termination or expiration shall survive such termination.
  11. Confidentiality
    1. Nondisclosure. Each Party (each a “Receiving Party”) agrees that it (i) shall use and reproduce the Confidential Information of the other Party (the “Disclosing Party”) only for purposes of exercising its rights and performing its obligations under this Agreement and only to the extent necessary for such purposes, (ii) shall restrict disclosure of such Confidential Information to the Receiving Party’s employees, consultants, or advisors who have a bona fide need to know for such purposes, and (iii) shall not disclose such Confidential Information to any third party without the prior written approval of the Disclosing Party. The foregoing obligations shall be satisfied by the Receiving Party through the exercise of at least the same degree of care used to restrict disclosure and use of its own information of like importance, but not less than reasonable care. All third parties to whom the Receiving Party discloses Confidential Information must be bound in writing by obligations of confidentiality and non-use at least as protective of such information as this Agreement. Notwithstanding the foregoing, it shall not be a breach of this Agreement for the Receiving Party to disclose Confidential Information if compelled to do so under law, in a judicial or other governmental investigation or proceeding, provided that, to the extent permitted by law, the Receiving Party has given the Disclosing Party prior notice and reasonable assistance to permit the Disclosing Party a reasonable opportunity to object to and/or limit the judicial or governmental requirement to disclosure.
    2. Exceptions. Notwithstanding anything to the contrary herein, neither Party shall be liable for using or disclosing information that such Party can prove: (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Receiving Party; (ii) was rightfully known to the Receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the Disclosing Party; (iv) was independently developed by the Receiving Party without any use of the Confidential Information, as demonstrated by files created at the time of such independent development; (v) becomes rightfully known to the Receiving Party, without restriction, from a source other than the Disclosing Party without breach of this Agreement by the Receiving Party and otherwise not in violation of the Disclosing Party’s rights; or (vi) is disclosed generally to third parties by the Disclosing Party without restrictions similar to those contained in this Agreement.
    3. Remedies. The Receiving Party agrees that a breach of this Section 11 may result in immediate and irreparable harm to the Disclosing Party that money damages alone may be inadequate to compensate. Therefore, in the event of such a breach, the Disclosing Party will be entitled to seek equitable relief, including but not limited to a temporary restraining order, temporary injunction or permanent injunction without the posting of a bond or other security.
  12. Limitation on Damages.
    1. EXCLUSION OF INCIDENTAL AND CONSEQUENTIAL DAMAGES. EXCEPT FOR GROSS NEGLIGENCE, WILFUL MISCONDUCT, BREACH OF SECTION 11 AND INDEMNIFICATION FOR THIRD-PARTY DAMAGES ARISING UNDER SECTION 13 OF THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, WARRANTY, OR OTHERWISE.
    2. MAXIMUM AGGREGATE LIABILITY. EXCEPT FOR GROSS NEGLIGENCE, WILFUL MISCONDUCT, BREACH OF SECTION 11 AND INDEMNIFICATION LIABILITY ARISING UNDER SECTION 13 OF THIS AGREEMENT, THE MAXIMUM LIABILITY OF EITHER PARTY FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID OR TO BE PAID TO COMPANY FOR SERVICES PROVIDED UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY. LICENSEE ACKNOWLEDGES THAT THE AMOUNTS PAYABLE HEREUNDER ARE BASED IN PART ON THESE LIMITATIONS. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
  13. Indemnification.
    1. Indemnification. Each Party shall indemnify, defend and hold the other Party and its officers, directors, employees, agents, successors and assigns harmless from and against all third-party claims, suits, actions, damages, settlements, losses, liabilities, costs (including without limitation reasonable attorney’s fees) and expenses resulting from or arising out of (a) any breach of this Agreement by such Party, (b) any negligence or willful misconduct with respect to the provision or use of the Software by such Party, and (c) any claim that the Software (as to Company), or the Licensee Data (as to Licensee) violates any applicable statute, regulation, or law, or infringes any intellectual property right or other legal right of any third party (a “Claim”). This indemnity does not apply to, and Company will have no obligation to the Licensee for, any infringement or misappropriation claim that arises from (i) modifications to the Software by anyone other than Company, (ii) modifications to the Software based upon specifications furnished by the Licensee, (iii) Licensee’s use of the Software other than as specified in this Agreement or in the applicable Documentation, (iv) use of the Software in conjunction with third-party software, hardware or data other than that approved by Company, or (v) any combination of the foregoing. Licensee shall indemnify, defend and hold Company and its officers, directors, employees, agents, successors and assigns harmless from and against all third-party claims, suits, actions, damages, settlements, losses, liabilities, costs (including without limitation reasonable attorney’s fees) and expenses to the extent they arise from any Claim based on any of the factors in the foregoing sentence, and shall give Company all reasonable information and assistance regarding such claim.
    2. The indemnified Party shall promptly notify the indemnifying Party in writing of any Claim; provided that the failure to provide such notice shall not relieve the indemnifying Party of its indemnification obligations hereunder except to the extent of any material prejudice directly resulting from such failure. The indemnifying Party shall bear full responsibility for, and shall have the right to solely control, the defence (including any settlements) of any Claim; provided, however, that (i) the indemnifying Party shall keep the indemnified Party informed of, and consult with the indemnified Party in connection with the progress of such litigation or settlement and (ii) the indemnifying Party shall not settle any such Claim in a manner that does not unconditionally release the indemnified Party without the indemnified Party’s written consent, not to be unreasonably withheld or delayed.
    3. In the event any portion of the Software is held or believed by Company, or any portion of the Licensee Data or Licensee Marks are held or believed by the Licensee, to infringe or misappropriate Intellectual Property Rights of any third party (such portion to be deemed the “Infringing Materials”) in any place where the Software is used or accessed, then in addition to any other rights in this Section 13, Company (where the Infringing Materials are the Software) or Licensee (where the Infringing Materials are the Licensee Data or Licensee Marks) shall, at its sole expense and at its option: (i) obtain from such third party the right for the other Party to continue to use the Infringing Materials; or (ii) modify the Infringing Materials to avoid and eliminate such infringement or misappropriation, as the case may be; or (iii) upon mutual agreement with the other Party, remove and disable the Infringing Materials; or (iv) if none of the foregoing remedies is commercially feasible, terminate this Agreement, provided that in such case Company shall promptly refund to Licensee all unused License Subscription Fees paid by Licensee to Company.
    4. Sole Remedies. THIS SECTION 13 SETS FORTH EACH PARTY’S ENTIRE LIABILITY AND OBLIGATION, AND EACH PARTY’S SOLE REMEDY FOR ANY CLAIM OF INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS.
  14. Personal Information, Data Protection, and Security
    1. Personal Information. The Parties acknowledge that in performing their obligations hereunder, Company may obtain from Licensee or have access to, or otherwise store, process or transmit, certain Personal Data of Licensee’s Authorized Users. “Personal data” means any information relating to an identified or identifiable natural person (“Data Subject”); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
    2. Limited Use. Company represents, warrants and covenants that at all times during the term of this Agreement, it will comply with its obligations under all applicable privacy, security and data protection laws, rules and regulations of any jurisdiction in the United States of America, the European Union and all then-current industry standards, guidelines and practices with respect to privacy, security and data protection, including the collection, processing, storage, protection and disclosure, of Personal Data.
    3. Security Measures. At all times it is in possession of Personal Data, Company shall maintain a data security program, and will: (i) implement and maintain commercially reasonable security procedures and practices appropriate to the nature of the Personal Data and take such other actions as are necessary to maintain conformance with industry standards of security (ii) comply at all times with all applicable laws concerning the protection and securing of information and (iii) take reasonable measures to protect against any anticipated or actual threats or hazards to the security of the Personal Data. In the event of a breach of Company security, Company shall promptly notify Licensee that a security breach has occurred. Company shall ensure that (a) to the extent shared environments exist with other businesses for all WANS, LANS, Network connections, dial-up connections, storage and distributed systems, that all access to Personal Data is restricted by employee function and position to only those Company employees or contractors who are involved in the administration of the Services to Licensee described in this Agreement; (b) all system connected terminals are equipped with access control (password protection), time-out for non-use; and (c) if Personal Data is to reside on the Software, then standards and security practices must be resident, including host access control, personal computer access control and virus protection, and LAN access controls. Company shall take reasonable measures to secure and defend the Services location(s) against “hackers” and others who may seek to obtain access to Personal Data without the consent of Licensee. Company shall periodically check log-files for potential areas where security could be breached. Company will maintain firewall protection and intrusion detection software.
    4. Encryption. Company will not store the Licensee Data on any portable device or media (e.g. laptop, flash drive, smartphone) that does not utilize industry standard, full disk (where possible) encryption. Personal Data must be encrypted when in transit and at rest consistent with accepted industry encryption standards.
    5. Strong Authentication. Company will use two-factor authentication for any privileged access (e.g. system or database level admin access) to any servers and/or applications hosting the Licensee Data as well as for any remote access to Personal Data.
    6. Hosted Systems. Company will protect the Personal Data hosted in the cloud environment using controls consistent with accepted industry standards.
    7. Disposal. Company will destroy the Licensee Data using a secure means of disposal when such data is no longer required (either for the services or to be retained by law). Hardware containing the Licensee Data and the Licensee licensed software must be physically destroyed or securely overwritten prior to disposal or use for another purpose
    8. Requests for Personal Data. If Company receives any legal request or process in any form seeking disclosure of or if Company should be advised by counsel of any obligation to disclose Personal Data, it will provide Licensee with prompt prior notice of such request or advice so that Licensee may seek a protective order or pursue other appropriate remedies to protect the confidentiality of such Personal Data. Company agrees to furnish only that portion of the information which is legally required to be furnished and, in consultation with Licensee, to use all reasonable efforts to assure that the Personal Data is maintained in confidence by the party to whom it is furnished.
    9. Notification of Security Breach and Incident Response. Company shall (a) promptly notify Licensee of any material unauthorized possession, security breach, use or knowledge, or attempted possession or use thereof (“Security Breach”), of the Personal Data (or any system on which Personal Data may be stored or maintained) by any person or entity which may become known to Company; (b) promptly furnish to Licensee full details of the unauthorized possession, use or knowledge, or attempted possession or use thereof, and use reasonable efforts to investigate any unauthorized possession, use or knowledge, or attempted possession or use thereof, of the applicable Personal Data; (c) fully cooperate with Licensee in any litigation and investigation against third parties deemed necessary by such party to protect its proprietary rights; and (d) promptly take effective action to prevent a recurrence of any such unauthorized possession, use or knowledge of the Personal Data. Company shall bear all reasonable and necessary costs and expense arising out of any Security Breach. Licensee shall also have the right to audit and investigate Company in the event of a Security Breach and Company shall fully cooperate
  15. Miscellaneous.
    1. Assignment. Neither Party may assign, sublicense, delegate or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may, without the consent of the other Party, assign this Agreement to an entity merging with, consolidating with, or purchasing substantially all its assets or stock, provided that the assignee shall assume all rights and obligations under this Agreement. Any permitted assignment of this Agreement shall be binding upon and enforceable by and against the Parties’ successors and assigns, provided that any unauthorized assignment shall be null and void and constitute a breach of this Agreement.
    2. Entire Agreement. This Agreement, any exhibits and amendments thereto, and any SOs constitute the entire agreement between the Parties and supersede all previous agreements, oral or written, with respect to the subject matter of this Agreement. This Agreement may not be amended without the prior written consent of both Parties.
    3. Import and Export Requirements. Licensee acknowledges and agrees that the Software is subject to export control laws and regulations. Licensee may not download or otherwise export or re-export the Software or any underlying information or technology except in full compliance with all applicable laws and regulations, in particular, but without limitation, United States export control laws. The Software and applicable information or technology may be downloaded or otherwise exported or re-exported: (a) into, or to a national or resident of, any country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of specially designated nationals or the U.S. Commerce Department’s list of prohibited countries or debarred or denied persons or entities. Licensee hereby agrees to the foregoing and warrants that Licensee is not located in, or under the control of, or a national or resident of any such country or on any such list.
    4. Force Majeure. Except for payment obligations, if either Party is prevented from performing or is unable to perform any of its obligations under this Agreement due to causes beyond the reasonable control of the Party invoking this provision, including but not limited to acts of God, acts of civil or military authorities, riots or civil disobedience, wars, strikes or labor disputes (other than those limited to the affected Party) (each, a “Force Majeure Event”), such Party’s performance shall be excused and the time for performance shall be extended accordingly provided that the Party immediately takes all reasonably necessary steps to resume full performance.
    5. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California without giving effect to its conflicts of law rules. Each of the Parties to this Agreement consents to the exclusive jurisdiction and venue of the California state.
    6. Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given when delivered by email to the address provided herein, in person (including by overnight courier) or three days after being mailed by registered or certified mail (postage prepaid, return receipt requested), and on the date the notice is sent when sent by verified facsimile, in each case to the respective Parties at the address first set forth hereto. Either Party may change its contact information by providing the other Party with notice of the change in accordance with this section.
    7. Relationship of Parties. The Parties are independent contractors and will have no right to assume or create any obligation or responsibility on behalf of the other Party. Neither Party shall hold itself out as an agent of the other Party. This Agreement will not be construed to create or imply any partnership, agency, joint venture or formal business entity of any kind.
    8. Dispute Resolution; Binding Arbitration and Waiver of Trial by Jury.
      1. Negotiation. In the event a dispute arises between Licensee and Company regarding the application or interpretation of any provision of this Agreement, the aggrieved Party shall promptly notify the other Party to this Agreement of the dispute. If the Parties fail to resolve the dispute within ten (10) business days after receipt of such notice, each Party shall, within five (5) business days thereafter, escalate such dispute to a member of its senior management team.
      2. Mediation. If a settlement is not achieved within ten (10) business days after a meeting between senior management representatives, then the Parties agree to attempt to resolve the dispute through mediation by submitting the dispute to mediation in accordance with the then current rules for mediation promulgated by the American Arbitration Association (“AAA”), including the Optional Rules for Emergency Measures of Protections which provide for injunctive relief and measures for the protection or conservation of property and disposition of perishable goods. The mediation proceedings shall be held in the State of California, and each Party shall bear its own expenses and an equal share of the expenses of the mediator and the fees of AAA. Such mediation will be held within thirty (30) business days of submission to AAA.
      3. Binding Arbitration. If the dispute is not resolved by mediation, then the Parties agree to resolve the dispute by binding arbitration before one arbitrator administered in accordance with the Commercial Arbitration Rules of the AAA including the Optional Rules for Emergency Measures of Protections, which provide for injunctive relief and measures for the protection or conservation of property and disposition of perishable goods. Arbitration shall be held in the State of California, or such other place as the Parties may agree and shall include an award of attorneys’ fees (and the amount of such fees) to the prevailing Party. The arbitration shall be held in front of a single arbitrator. The Parties shall agree on the selection of the arbitrator. Discovery shall be limited to one set of interrogatories, one set of request for admissions, and one set of requests for production of documents. In allowing discovery, the arbitrator shall be governed by the Federal Rules of Civil Procedure then in effect in defining the scope and direction of such discovery and the admissibility of evidence. The arbitrator shall be required to make written findings of fact and render written opinions of law. Subject to any limitations set forth herein above, any award of damages pursuant to such arbitration shall be included in a written decision signed by the arbitrator which shall state the reasons upon which the award was based, including all the elements involved in the calculation of any award of damages. The arbitrator’s award shall be final and binding, and judgment thereon may be entered in any court having jurisdiction over the party against which enforcement is sought; provided that any such award rendered by the arbitrator shall be strictly in conformance to and in accordance with the terms and conditions of this Agreement including, without limitation, the limitation of liability provisions contained herein. Other than those matters involving injunctive relief as a remedy or any action necessary to enforce the award of the arbitrator, the Parties agree that the provisions of this Section 15.8.3 are a complete defense to any suit, action or other proceedings instituted in any court or before any administrative tribunal with respect to any dispute or controversy arising under or relating to this Agreement. Nothing in this Section 15.8.3 shall prevent either Party from exercising its rights to terminate this Agreement as specified herein. The Parties undertake and agree that all arbitral proceedings conducted under this Section 15.8.3 shall be kept confidential, and all information, documentation, and materials in whatever form disclosed in the course of such arbitral proceeding shall be used solely for the purpose of those proceedings.
      4. Waiver of Court or Jury. Each Party hereto agree to waive any rights it may have with respect any claim arising out of this Agreement.
      5. Survival. The provisions of this Section 15.8 shall survive the expiration or termination of this Agreement for any reason.
    9. Severability. If any provision of this Agreement is held invalid or unenforceable, it shall be replaced with the valid provision that most closely reflects the intent of the Parties and the remaining provisions of the Agreement will remain in full force and effect.
    10. Waiver. No delay or failure by either Party to exercise any right or remedy under this Agreement will constitute a waiver of such right or remedy. All waivers must be in writing and signed by an authorized representative of the Party waiving its rights. A waiver by any Party of any breach or covenant shall not be construed as a waiver of any succeeding breach of any other covenant.
    11. Headings. The headings of the articles and paragraphs contained in this Agreement are inserted for convenience and are not intended to be part of or to affect the interpretation of this Agreement.
    12. Construction; Advice of Counsel. Both Parties acknowledge and agree that the Agreement has been jointly prepared and its provisions will not be construed more strictly against either Party as a result of its participation in such preparation. Each Party acknowledges and represents that, in executing this Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the terms and provisions of this Agreement.

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