Imply Software License

Important- READ CAREFULLY BEFORE INSTALLING OR USING THE SOFTWARE.

This SOFTWARE LICENSE AGREEMENT (“Agreement”) is a binding, legal agreement between you (either an individual or an entity, if you are acting within the scope of your employment) (“you” “your” or “Customer”) and Imply Data, Inc. a Delaware corporation with offices at 211 Sutter St, Suite 501, San Francisco, CA, 94108 and its supplier and licensors (“Imply”), regarding software you have requested to download (the “Software”) which may include any of the following, without limitation, as trial, pre-release, open source software, pay and premium versions of the following products (collectively, “Imply Products”): Imply Analytics Platform, Druid, Clarity, Pivot, etc.

BY CLICKING ON THE CHECKBOX THAT DEMONSTRATES ACCEPTANCE OF THIS AGREEMENT, OR BY DOWNLOADING OR USING THE SOFTWARE, CUSTOMER EXPRESSLY ACCEPTS AND AGREES TO THE TERMS OF THIS AGREEMENT. IF CUSTOMER IS AN INDIVIDUAL AGREEING TO THE TERMS OF THIS AGREEMENT ON BEHALF OF AN ENTITY, SUCH AS YOUR EMPLOYER, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY AND “CUSTOMER” SHALL REFER HEREIN TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SOFTWARE.

1. License

1.1 License Terms. This Agreement covers the following license types:

(a) Proprietary Software. Subject to the terms of this Agreement, Imply grants to Customer a limited, non-exclusive, non-transferable license, without the right to sublicense, during the license term identified on the Order Form to install and use the Proprietary Software downloaded by Customer, in object code format only, (“Proprietary Software”) along with the accompanying Documentation, only on servers owned or controlled by Customer and solely for Customer’s internal business operations. “Documentation” means Imply’s current user manuals, operating instructions and installation guides generally provided with its Software to its licensees. Specifically, Proprietary Software includes Pivot client and server software for exploratory data analysis and visualization.

(b) Evaluation Software. Without limiting subsection (a) above, the following terms apply to any portions of the Proprietary Software identified as “Evaluation Software” on the Order Form or via a pop-up notice, or otherwise specified in writing by Imply. Imply grants Customer a limited, non-exclusive, non-transferable license, without the right to sublicense, during the Evaluation Term to install the Evaluation Software only on servers owned or controlled by Customer and solely for internal evaluation of the suitability of the Evaluation Software for Customer’s business needs. “Evaluation Term” means thirty (30) days from the date of download by Customer or such other period specified in writing by Imply. If Customer wishes to license the Evaluation Software after the Evaluation Term, or for purposes other than those set forth in this Section 1(b), Customer may contact Imply to request a production license. Any such license will be subject to Imply’s standard terms for such license. After the Evaluation Term, Customer’s license to use the Evaluation Software will terminate and Customer’s access may be disabled by features in the Evaluation Software license key. Specifically, Evaluation Software includes Pivot client and server software for exploratory data analysis and visualization.

(c) Open Source Software. In addition to the Proprietary Software, Imply may provide Customer with open source software made publicly available by Imply and delivered with a text license file indicating an open source license or otherwise identified in writing as an open source license (“Open Source Software”). Open Source Software shall be subject to the open source license terms and conditions applicable to such software as specified by Imply and as identified in the text license file. Specifically, Open Source Software includes Druid, Plywood, PlyQL, and Tranquility, and may include other software issued by Imply that is identified as Open Source Software in a related text license file.

(d) Third Party Software. Imply may make available to Customer certain third party software, currently identified at https://imply.io/third-party-software (the “Third Party Software”). Notwithstanding anything to the contrary in this Agreement the Third Party Software is subject to the terms and conditions of the third party license agreement applicable to such software. To the extent the terms of any open source licenses applicable to such Third Party Software prohibit any of the restrictions in this Agreement with respect to such Third Party Software, such restrictions will not apply to such Third Party Software. To the extent the terms of open source licenses applicable to such Third Party Software require Imply to make an offer to provide source code or related information in connection with the Third Party Software, such offer is hereby made. Any request for source code or related information should be directed only to: contact@imply.io. Customer acknowledges receipt of open source license notices for such Third Party Software.

(e) Imply Analytics Platform. The Proprietary Software (including without limitation the Evaluation Software), the Open Source Software and the Third Party Software shall be referred to collectively as the “Imply Analytics Platform.”

1.2 Additional Restrictions on Use. Customer shall not, and shall not permit or encourage any third party to: (a) sell, rent, distribute, or use the Proprietary Software for third-party training, software-as- a-service, time-sharing or service bureau use; or (b) translate, disassemble, decompile or reverse engineer any portions of the Proprietary Software that are not provided in source code format, or otherwise attempt to gain access to the source code to such Proprietary Software (or the underlying ideas, algorithms, structure or organization of the object code in the Proprietary Software); or (c) create derivative works based on the Proprietary Software or its Documentation; or (d) remove any proprietary notices or labels on the Imply Analytics Platform or its individual components or accompanying Documentation; or (e) disclose the results of any performance benchmarks to any third party without Imply’s prior written consent. To the extent the foregoing restriction in subsection 1.2(b) is inapplicable as prohibited by law, in the event that Customer intends to disassemble, decompile or reverse engineer such Proprietary Software, Customer shall first provide Imply with written notice thereof.

1.3 Copies. Section 1.1 includes the right for Customer to make copies of the Proprietary Software as necessary to exercise the licenses granted in Section 1.1, and a reasonable number of backup or archival copies, provided that each such copy shall include Imply’s copyright and any other proprietary notices that appear on the original copies of the Proprietary Software and Customer shall maintain a record adequate records identifying the location of such backups or copies. Customer will have no right to make back-up copies of Evaluation Software.

1.4 Reservation of Rights. Imply reserves all rights not expressly granted in this Agreement. No rights are granted by implication.

1.5 Order, Delivery and Acceptance. Customer will place an order for Imply products and services by means of an Order Form. The “Order Form” will reference this Agreement and identify the following, without limitation: the Imply Analytics Platform components and services to be delivered, the license term, any applicable fees, and Customer information including the installation and billing addresses. The Imply Analytics Platform, and any versions, updates or maintenance releases of any component thereof and any Documentation will be delivered only through the internet and made available for download. The parties shall reasonably cooperate to effectuate such delivery via FTP or other reasonable means. Customer agrees that acceptance of the Imply Analytics Platform will occur upon delivery of the software activation key and download instructions, and that such acceptance shall not be revoked. Customer is solely responsible for installation of the Imply Analytics Platform as permitted under this Agreement.

1.6 Privacy. Imply’s collection, use and disclosure of Customer information is in accordance with its Privacy Policy, https://imply.io/privacy. Certain components of the Imply Analytics Platform may automatically communicate and send operational and system level metrics to Imply and may check for important messages, updates and service bulletins. Imply may also keep statistics on the aggregated anonymous use of the Imply Analytics Platform. Imply cannot access Customer raw data but with Customer’s use of certain components of the Imply Analytics Platform it may be possible for Imply to see operation metadata about Customer’s data clusters.

1.7 Audit. Imply may, at any time during the Term of this Agreement and with seven (7) days prior written notice, request and gain access to Customer’s premises, subject to Customer’s reasonable security procedures, for the limited purpose of conducting an audit to verify that Customer is in compliance with the terms of the Agreement applicable to Customer’s fee-bearing Proprietary Software license. Customer will promptly grant such access and cooperate with Imply in the audit. The audit will be restricted in scope, manner and duration to that reasonably necessary to achieve its purpose and not disrupt Customer’s business operations. Customer shall be liable for promptly remedying any underpayments revealed during the audit. If the audit reveals an underpayment discrepancy in excess of five percent (5%) of fees due, Customer will also be liable for the costs of the audit.

2. Ownership. Customer acknowledges that Imply or its suppliers and licensors retain all proprietary rights, title and interest, including all intellectual property rights, in and to the Imply Analytics Platform and any changes, corrections, bug fixes, enhancements, features, updates and other modifications thereto (collectively, “Modifications”) made by or on behalf of Customer, and as between the parties all such rights shall vest in Imply. Customer acknowledges that the licenses granted in Section 1.1 do not include the right to prepare any Modifications of the Imply Analytics Platform. Except as explicitly set forth herein, Customer shall have no right to receive any such Modifications. In the event ownership of any portion of the Imply Analytics Platform or any Modifications vest in Customer, Customer hereby assigns and shall assign to Imply all of its right, title and interest in and to all intellectual property and other rights in such materials or Modifications, and waives any and all moral rights in such materials or Modifications to which it may now or in the future be entitled under the laws of any jurisdiction. Notwithstanding the foregoing, Customer may develop interfaces to the Imply Analytics Platform strictly for its use in conjunction with its licensed use of the Imply Analytics Platform; provided, however, that Customer shall perform all such development without misappropriating, infringing, or otherwise violating any intellectual property or trade secret rights of Imply and without using, examining, or otherwise referencing the source code of the Proprietary Software. Such interfaces will be the sole property of Customer.

3. Confidentiality.

3.1 Nondisclosure. Each party shall retain in confidence the non-public information and know-how disclosed or made available by the other party pursuant to this Agreement which is either designated in writing as proprietary and/or confidential, if disclosed in writing, or if disclosed orally, is designated in writing (which may be via email) as confidential within thirty (30) days of the oral disclosure or should reasonably be understood to be confidential by the recipient (the “Confidential Information”); provided, however that Modifications will be the Confidential Information of Imply and not Customer. Notwithstanding any failure to so designate them, the Proprietary Software and the terms and conditions of this Agreement shall be Imply’s Confidential Information. Each party agrees to: (a) maintain the confidentiality of the other party’s Confidential Information; (b) refrain from using the other party’s Confidential Information except for the purpose of performing its obligations under this Agreement; and (c) not disclose such Confidential Information to any third party except to employees and subcontractors as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding written use and disclosure restrictions at least as protective as those set forth herein). Each party shall immediately notify the other party of any unauthorized disclosure or use of any Confidential Information and assist the other party in remedying such unauthorized use or disclosure by taking such steps as are reasonably requested by such other party. The foregoing obligations will not apply to Confidential Information of the other party which is: (i) already publicly known without breach of this Agreement; (ii) discovered or created by the receiving party without use of, or reference to, the Confidential Information of the disclosing party, as shown in records of the receiving party; (iii) otherwise known to the receiving party through no wrongful conduct of the receiving party, or (iv) required to be disclosed by law or court order; provided that the receiving party shall provide prompt notice thereof and reasonable assistance to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Moreover, either party hereto may disclose any Confidential Information hereunder to such party’s agents, attorneys and other representatives (and only subject to confidentiality obligations at least as protective as those set forth herein) or any court of competent jurisdiction as reasonably required to resolve any dispute between the parties hereto.

3.2 Remedies. Each party acknowledges that any breach or threatened breach of this Section may cause irreparable injury to the disclosing party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the receiving party, without the necessity of proving actual damages or posting any bond, in addition to any other rights or remedies provided by law.

4. Payments and Taxes. Customer’s Order Form will set forth the fees for the Imply Analytics Platform license and service subscription. All fees are due and payable within thirty (30) days from the date of Imply’s invoice and are non-refundable subject to Sections 5.2 (Remedies) and 7.2 (Injunctive Relief) and non-cancelable. The terms and conditions of this Agreement shall prevail regardless of any preprinted or conflicting terms on a purchase order, other correspondence, and any and all verbal communication. Customer will pay all sales, use, VAT, and other consumption taxes, personal property taxes and other taxes (other than those based on Imply’s net income) unless Customer furnishes satisfactory proof of exemption. Imply may assess interest charges of one percent (1%) per month for late payments.

5. Limited Warranty.

5.1 Exclusive Proprietary Software Warranty. For a period of sixty (60) days after delivery of the Proprietary Software (the “Warranty Period”), Imply warrants that the Proprietary Software shall materially conform to the Documentation. Imply does not warrant that operation of the Proprietary Software will be uninterrupted or “bug” free.

5.2 Remedies. If Imply breaches the foregoing warranty and Customer promptly notifies Imply in writing of the nature of the breach during the Warranty Period, Imply shall make commercially reasonable efforts to promptly repair or replace the non-conforming Proprietary Software without charge. If, after a reasonable opportunity to cure, Imply does not repair or replace the non-conforming Proprietary Software, Customer must return the Proprietary Software and the Documentation to Imply, or certify in writing that all copies have been destroyed, and Imply will refund the license fees it received from Customer for the Proprietary Software. This is Customer’s sole and exclusive remedy for breach of the exclusive warranty in Section 5.1.

5.3 Warranty Disclaimer. IMPLY DOES NOT WARRANT THAT THE IMPLY ANALYTICS PLATFORM WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE IMPLY ANALYTICS PLATFORM WILL OPERATE IN THE COMBINATIONS THAT CUSTOMER MAY SELECT FOR USE, OR THAT ALL ERROR WILL BE CORRECTED. OTHER THAN THE LIMITED WARRANTY PROVIDED IN SECTION 5.1, IMPLY DISCLAIMS ALL WARRANTIES EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PROPRIETARY SOFTWARE, ANY OTHER ELEMENT OF THE IMPLY ANALYTICS PLATFORM OR ANY OTHER MATERIALS PROVIDED HEREUNDER. IMPLY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE , NONINFRINGEMENT AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. THE IMPLY ANALYTICS PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.

6. Services. Imply makes available different service offerings to its customers. Support and maintenance for the Imply Analytics Platform (the “Support Services”) is included as part of Customer’s subscription of the Imply Analytics Platform. Support Services will be provided under Imply’s current prices and standard terms and conditions in effect on the date Support Services are ordered or renewed. Imply reserves the right to amend its standard Support Services terms at any time with notice to Customer. If Customer chooses to evaluate or purchase additional services as part of Customer’s Order those terms may be found here: https://imply.io/legal.

7. Indemnification and Limitation of Liability.

7.1 Indemnification. Imply will indemnify, defend or settle any action brought against Customer to the extent that it is based upon a claim that the Proprietary Software, as provided under this Agreement and used within the scope of this Agreement, infringes any United States patent or copyright, or misappropriates any trade secret, and will pay any damages that are finally awarded against Customer for such infringement or misappropriation, provided that Customer: (a) must promptly notify Imply in writing of the claim; (b) reasonably cooperates with Imply and provides Imply, at Imply’s expense, with all assistance, information, and authority reasonably required for the defense and settlement of the claim; and (c) grants Imply the sole control of the defense and all related settlement negotiations

7.2 Injunctive Relief. If an injunction is, or in Imply’s opinion is likely to be, threatened, sought or obtained against Customer’s use of the Proprietary Software as a result of a third party infringement claim, Imply may, at its sole option and expense, (i) procure for Customer the right to continue using the affected Proprietary Software, (ii) replace or modify the affected Proprietary Software with functionally equivalent software so that it does not infringe, or, (iii) terminate the licenses and refund any pre-paid fees received from Customer for the then outstanding license term on a pro rata basis, if applicable.

7.3 Disclaimer of Liability. Imply shall have no liability or obligations for any third party claim of infringement based upon (i) modifications to the Proprietary Software made by a party other than Imply, if a claim would not have occurred but for such modifications; (ii) Customer’s failure to use the then current, unaltered version of the applicable Proprietary Software (including any maintenance release provided by Imply to avoid a claim); (iii) use, operation or combination of the applicable Proprietary Software with any programs, data, equipment or documentation that is not deemed by Imply to work in conjunction with the Software except for use with the Imply Analytics Platform, if such infringement would have been avoided but for such use, operation or combination; (iv) any open source or third party software; or (v) Customer’s use of the Proprietary Software other than in accordance with this Agreement and the Documentation. The foregoing constitutes the entire liability of Imply, and Customer’s sole and exclusive remedy, with respect to any third party claims of infringement of intellectual property rights of any kind.

7.4 Limitation of Liability. IMPLY’S AGGREGATE LIABILITY TO CUSTOMER FOR DAMAGES CONCERNING PERFORMANCE OR NONPERFORMANCE BY IMPLY OR IN ANY WAY RELATED TO THIS AGREEMENT, AND REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, SHALL NOT EXCEED THE LICENSE FEES RECEIVED BY IMPLY FROM CUSTOMER FOR THE AFFECTED PROPRIETARY SOFTWARE FOR THE TWELVE (12) MONTH PERIOD PRECEDING THE OCCURRENCE OF SUCH LIABILITY. FURTHER, IMPLY WILL NOT BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF BUSINESS REVENUE, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY CLAIM OR DEMAND BY ANY OTHER PARTY, HOWEVER CAUSED AND (TO THE FULLEST EXTENT PERMITTED BY LAW) UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) EVEN IF IMPLY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ACKNOWLEDGES THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

8. Term and Termination.

8.1 Term. Unless earlier terminated as provided in this Section, this Agreement and the license granted hereunder shall be effective as of the Effective Date set forth in the Customer’s Order Form and shall continue for the duration of the license term unless renewed or terminated in accordance with this Section (the “Term”). After the expiration of the initial license term, the license grant for Proprietary Software shall automatically renew in one (1) year increments on the renewal terms set forth in the Order Form unless either party terminates the license by providing written notice at least sixty (60) days prior to the scheduled renewal date.

8.2 Termination. Either party shall have the right to terminate this Agreement and the license granted herein upon written notice in the event the other party fails to perform or observe any material term or condition of this Agreement and such default has not been cured no later than thirty (30) days after written notice of such default to the other party. Imply may also terminate this Agreement immediately if the Customer: (a) terminates or suspends its business; (b) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute; (c) becomes insolvent or subject to direct control by a trustee, receiver or similar authority; or (d) has wound up or liquidated, voluntarily or otherwise.

8.3 Effect of Termination. The rights and obligations of Imply and Customer in Sections 1.4 (Reservation of Rights), 2 (Ownership), 3 (Confidentiality), 5.3 (Warranty Disclaimer), 7.4 (Limitation of Liability), and 9 (Miscellaneous) shall survive termination of this Agreement. All of Customer’s rights in the Evaluation Software will terminate immediately upon termination of this Agreement. No later than five (5) days after termination of this Agreement, Customer shall return to Imply or, upon Imply’s request, destroy, at Customer’s sole expense, all Confidential Information of Imply and materials containing any Confidential Information of Imply, the Proprietary Software, including all copies thereof, and deliver to Imply a certification, in writing signed by an officer of Customer, that such Confidential Information, Proprietary Software and all copies thereof have been returned or destroyed, and their use discontinued. Nothing contained herein shall limit any other remedies that Imply may have for the default of Customer under this Agreement nor relieve Customer of any of its obligations incurred prior to such termination.

9. Miscellaneous.

9.1 Assignment. Customer shall not assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, to any third party without Imply’s prior written consent. Any purported transfer, assignment or delegation without such prior written consent will be null and void and of no force or effect. Imply shall have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Subject to this Section, this Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns.

9.2 Entire Agreement; Modification; Waiver. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings, written or oral, with respect to the matters covered by this Agreement, and is not intended to confer upon any third party any rights or remedies hereunder. Customer acknowledges that it has not entered in this Agreement based on any representations other than those contained herein. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing and signed by both parties. If there is any conflict between the terms and conditions of this Agreement including any documents incorporated herein by reference, and the terms and conditions of any Order Form, Customer purchase order or other document, the terms and conditions of this Agreement shall prevail except to the extent the term is explicitly referenced and superseded by the parties in a signed writing. The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default.

9.3 Dispute Resolution and Governing Law. All claims, disputes, and other matters in question arising out of, or relating to, this Agreement or the interpretation or breach thereof, shall be fully, finally and exclusively resolved by binding and confidential arbitration conducted pursuant to the rules of Judicial Arbitration and Mediation Services, Inc. (JAMS) in San Francisco, California. This agreement to arbitrate shall be specifically enforceable under applicable law in any court. Notice of the demand for arbitration shall be filed in writing with the other party to this Agreement and JAMS. By entering into this Agreement, Imply and Customer waive their respective rights to have any such disputes or claims tried by a judge or jury. To the fullest extent permitted by law: no arbitration under this Agreement shall be joined to any other arbitration, including any arbitration involving any other current or former customer of Imply; no class arbitration proceedings shall be permitted; no finding or stipulation of fact in any other arbitration, judicial or similar proceeding may be given preclusive or collateral estoppel effect in any arbitration hereunder (unless determined in another proceeding between Customer and Imply); and no conclusion of law in any other arbitration may be given any weight in any arbitration hereunder (unless determined in another proceeding between Customer and Imply). Customer’s arbitration fees and share of arbitrator compensation will be limited to those set forth in the JAMS Rules with the remainder paid by Imply. If such costs are determined to be excessive, Imply will pay all arbitration fees and arbitrator compensation. The parties hereto may litigate in court only to compel arbitration under this Agreement, stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award rendered by the arbitrator(s). The parties hereto hereby consent to the exclusive jurisdiction of the state and federal courts sitting in the State of California to enforce the provisions of this section, and to resolve any disputes and claims cognizable in court relating in any way, or arising out of, this Agreement, the Imply Analytics Platform, or Customer’s use of the Imply Analytics Platform. The court, not the arbitrator, shall determine whether arbitration may occur and enforce the arbitration agreements contained herein, including the prohibition on consolidated arbitrations and class arbitration. This Agreement and all disputes and claims relating in any way to, or arising out of, this Agreement, the Imply Analytics Platform or services shall be governed by the laws of the State of California and the Federal Arbitration Act. The parties hereby disclaim and exclude the application hereto of the United Nations Convention on Contracts for the International Sale of Goods.

9.4 Severability. If any provision of this Agreement is held invalid or unenforceable under applicable law by a court of competent jurisdiction, 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.

9.5 Relationship of the Parties. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever. Each party may identify the other as a customer or supplier, as applicable, and place the other party’s logo on its website.

9.6 Notices. All notices permitted or required under this Agreement shall be in writing and shall be deemed to have been given when delivered in person (including by overnight courier), or three (3) business days after being mailed by first class, registered or certified mail, postage prepaid, to the address of the party specified on the Order Form.

9.7 U.S. Government Restricted Rights. If Proprietary Software is being licensed by the U.S. Government, the Proprietary Software and Documentation is deemed to be “commercial computer software” and “commercial computer documentation” developed exclusively at private expense, and (a) if acquired by or on behalf of a civilian agency, shall be subject solely to the terms of this computer software license as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (b) if acquired by or on behalf of units of the Department of Defense (“DOD”) shall be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 227.7202-2, DOD FAR Supplement and its successors.

9.8 Export Law Assurances. The Proprietary Software is subject to export control laws and regulations. CUSTOMER MAY NOT DOWNLOAD OR OTHERWISE EXPORT OR RE-EXPORT THE PROPRIETARY 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. NONE OF THE PROPRIETARY SOFTWARE OR ANY UNDERLYING 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. CUSTOMER HEREBY AGREES TO THE FOREGOING AND REPRESENTS AND WARRANTS THAT CUSTOMER IS NOT LOCATED IN, UNDER CONTROL OF, OR A NATIONAL OR RESIDENT OF ANY SUCH COUNTRY OR ON ANY SUCH LIST.

9.9 Construction. The titles and section headings used in this Agreement are for ease of reference only and shall not be used in the interpretation or construction of this Agreement. No rule of construction resolving any ambiguity in favor of the non-drafting party shall be applied hereto. The word “including”, when used herein, is illustrative rather than exclusive and means “including, without limitation.”

This Software License was last modified on the 1st March 2017.

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