Software License Agreement
READ CAREFULLY THIS Software LICENSE AGREEMENT (AGREEMENT), which CONTAINS THE EXCLUSIVE TERMS AND CONDITIONS BETWEEN NUODB, Inc., a delaware corporation, with an address at 215 First Street, Cambridge, MA 02142, USA (LICENSOR), AND YOU (TOGETHER WITH THE ENTITY FOR WHICH YOU OBTAIN THE software, licensee), regarding USE OF THE software. YOU REPRESENT AND WARRANT THAT YOU have full legal authority to enter into THIS AGREEMENT, under all applicable laws and on behalf of licensee. BY SELECTING THE “ACCEPT” BUTTON BELOW OR by ACCESSING, downloading, INSTALLING OR USING ANY OF THE SOFTWARE (ACCEPTANCE), YOU WILL CREATE A LEGALLY ENFORCEABLE CONTRACT where LICENSEE agreeS TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT WITHOUT MODIFICATION.
IF YOU CANNOT OR DO NOT AGREE TO ALL TERMS AND CONDITIONS IN THIS AGREEMENT, YOU SHOULD SELECT THE “DO NOT ACCEPT” BUTTON BELOW TO DISCONTINUE INSTALLATION AND YOU ARE PROHIBITED FROM ACCESSING, DOWNLOADING, INSTALLING OR USING THE SOFTWARE.
Application means Licensee’s software application that includes or utilizes the Software, and shall be deemed to include any corresponding Application Client.
Application Client means any “client” software (in executable format) that is necessary for an end-user to access and use an Application, which is hosted and operated by Licensee in providing a Licensed Service to such end-user.
Database means a collection of “NuoDB” transaction engines or “NuoDB” storage managers within a Domain that act together to form a single database.
Documentation means the Software user guide, help information and other technical documentation made available by Licensor (in paper, digital or electronic form).
Domain means a collection of Hosts that have been provisioned to run one or more Databases. For clarity, a single Domain may include one Database, or a group of related Databases that are centrally managed by or on behalf of Licensee. Unless otherwise specified in the Sales Order, the Software is licensed for use with one Domain only (regardless of License type).
Domain Size means the maximum size of data managed by “NuoDB” storage managers related to all Databases within a Domain at any time during the License Term.
Free Tier means the limits on the scope of use of the Software under the Pro License when no License Fees are payable, as determined and published by Licensor from time to time. Currently, the Free Tier applies for usage up to the following limits: number of Domains = 1; number of Regions = 1; Domain Size < 4 Gigabytes; and number of Hosts < 2. Host means each instance of an operating system running on a physical or virtual computer within a Domain that is used to operate the Software.
License means the license type applicable to Licensee’s authorized use of the Software, Documentation and Applications (i.e., Developer License, Pro License or Enterprise License) that is expressly specified during Registration or in the Sales Order, and which shall be as further described in this Agreement. License Fee means the subscription fee payable for the License during the specified License Term and subject to the limitations specified during Registration or in the Sales Order. Payment of the License Fee includes access to Support Services during the applicable License Term.
Licensed Service means an Application that is hosted and operated by Licensee for access and use by Licensee’s employees or customers on a time-share, service bureau, software-as-a-service or similar basis, but only where the Software is incapable of being used separately or apart from such Application. For clarity, all use of the Software by Licensee (in the aggregate, considering all Applications and Licensed Services) remains subject to any applicable limit on Domain Size and the number of licensed Hosts and Domains.
License Term has the meaning set forth in Section 2.3.
Registration means the online process by which Licensee may register with Licensor to access and use the Software under a License.
Region means a set of Hosts configured by the Customer via the Software’s administrative layer for the purpose of implementing the geo-distributed data management capability within the Software. For clarity, the Enterprise License is intended to enable use of the geo-distributed capability within the Software, and therefore the use of the Software under the Enterprise License is permitted in more than one Region.
Sales Order means the written description in paper or electronic form prepared by Licensor (or Licensor's invoice, if no such writing exists), which describes the License, License Fee, License Term and any related limitations, terms and conditions applicable to the provision of the Software to Licensee (e.g., any limit on the Domain Size, number of Domains or number of Hosts).
Software means the executable version of Licensor's software product that is specifically identified during Registration or in the Sales Order and made available for download by Licensee, or that otherwise is intentionally made available or delivered to Licensee under this Agreement (e.g., updates delivered pursuant to Support Services).
2.1 Software. Subject to Acceptance and all terms and conditions of this Agreement, Licensor grants to Licensee a nonexclusive, nontransferable right and license to download, install and use the Software without modification, in accordance with the Documentation, solely for Licensee's internal business purposes (including to develop, test, host and operate a Licensed Service) during the License Term. Licensee may make a reasonable number of copies of the Software solely for inactive backup and archival purposes. Depending on the License type, Licensee’s use of the Software shall also be subject to the following terms, as applicable:
a. Developer License. Licensee may use the Software only to develop and test Applications internally, but not for any other purpose (including without limitation, operating any Licensed Service that can be accessed by a third party), unless and until it upgrades to a Pro License or an Enterprise License.
b. Pro License. The use of Software under the Pro License is subject to the License Fee and limitations in the number of Domains, Domain Size and number of Hosts specified in the Sales Order, or as defined for the Free Tier. In any case, the use of the Pro License is limited to one Region.
c. Enterprise License. The use of Software under the Enterprise License is subject to the License Fee and limitations in the number of Domains, Domain Size, number of Regions and number of Hosts specified in the Sales Order.
2.2 Upgrades. Upon Licensee’s request, Licensor may agree (as set forth in a corresponding Sales Order) to upgrade any Developer License to a Pro License or an Enterprise License, or to increase the scope of any Pro License (e.g., to increase limits on the licensed number of Hosts, number of Domains or Domain Size), subject to payment of the applicable License Fee (if any) and the other terms and conditions of this Agreement.
2.3 License Term. The License granted under this Agreement shall be valid only during the following time periods (whichever applies, the License Term), unless and only to extent a different time period is expressly specified during Registration or in the Sales Order: (i) no time limit for Pro License usage within the limitations of the Free Tier; 1 year for Developer Licenses; 1 year for Pro Licenses; and 1 year for Enterprise Licenses. Unless otherwise specified in the Sales Order, the License Term for Pro Licenses and Enterprise Licenses shall automatically renew for an additional 1 year term at Licensor’s then current pricing, unless either party gives the other written notice of non-renewal at 30 days before the end of the relevant License Term. The License Term for Developer Licenses shall not renew automatically and will renew upon mutual written agreement only. Notwithstanding the foregoing, the License Term shall terminate automatically, without further action or notice by either party, immediately upon any termination of this Agreement.
2.4 License Control. Licensee understands and agrees that (a) the Software contains code and/or requires license keys or devices that detect or prevent unauthorized use of, or disable, the Software, and (b) it will provide Licensor reasonable access to the automated audit logs (if any) maintained by the Software (including without limitation, permitting the Software to transmit the audit logs to Licensor automatically from time to time).
2.5 Distributions. Neither the Software nor any Application may be transferred, sublicensed or otherwise distributed (in whole or in part), except pursuant to a Licensed Distribution. The term Licensed Distribution means: (a) any distribution of the Software or an Application only as and to the extent expressly authorized and specified in the Sales Order or any separate written OEM, distribution or other license agreement executed by the parties; or (b) any distribution of an Application Client to an end-user of a Licensed Service pursuant to an enforceable sublicense agreement that limits use by the end-user to accessing and using the Licensed Service. In any case, Licensed Distributions shall be subject to the requirements of Section 6.2.
2.6 Limitations. The Software is licensed as a single product and Licensee may not use its component parts separately. In addition, Licensee agrees that its use of the Software shall comply with all other limitations, prohibitions and conditions identified during Registration and/or set forth in the Sales Order, Documentation or elsewhere in this Agreement, including without limitation, any restriction regarding: the time period during which the Software may be used; the size or configuration of the system with which the Software may be used (such as, based on number of Hosts, number of Domains, Domain Size or other metrics); the number of Applications that can be developed or deployed internally; the number of Licensed Services or Licensed Distributions; or limited purposes for which the Software may be used (such as, trial use or development).
2.7 Documentation. Subject to Acceptance and all terms and conditions in this Agreement, Licensor grants to Licensee a nonexclusive, nontransferable right and license to use the Documentation, solely in connection with its authorized use of the Software during the License Term. Licensee may make exact copies of the Documentation as reasonably needed to support its authorized use of the Software.
3.1 Support. Licensor will use commercially reasonable efforts to provide the technical support and maintenance services for the Software in accordance with its then current practices (Support Services), which are set forth at http://go.nuodb.com/rs/nuodb/images/NuoDB_support_v1.pdf. Licensor has no obligation to support any version of the Software other than the then current version. In place of any prior version, Licensee shall promptly download, install and use any Software update made available by Licensor. Licensee agrees that Licensor may charge in accordance with its then current policies for any Support Service resulting from problems, errors or inquiries related to any Application or any use of the Software that does not comply with this Agreement.
3.2 Other Services. From time to time, Licensee may request and Licensor may agree to provide certain installation, implementation, custom development, consulting, training or other professional services. The terms and conditions of such arrangement shall be only as, if and when set forth in a separate writing that is mutually agreeable to and executed by both parties.
4.1 Fees. Licensee agrees to pay Licensor all License Fees (as applicable) and other charges in the amounts and at the times specified during Registration or in the Sales Order and as otherwise provided in this Agreement. Fees and charges may be: specified as being payable in advance or in arrears; fixed, contingent or variable (e.g., depending on usage factors); specified on a recurring or non-recurring basis.
4.2 Payment Terms. Unless specified otherwise, all amounts due hereunder shall be paid in full (without deduction, set-off or counterclaim) within 30 days after invoice in US dollars at Licensor's address or to an account specified by Licensor. Any amount not paid when due shall bear a late payment charge, until paid, at the rate of 1.5% per month or the maximum amount permitted by law, whichever is less. Licensee agrees to reimburse Licensor for all costs (including attorneys' fees) incurred in collecting late payments.
4.3 Taxes. The prices stated in this Agreement do not include any federal, state, local or foreign taxes, withholdings, duties, tariffs, levies or similar assessments on the license, delivery or use of any Software, Documentation or services. Licensee agrees to pay all such charges and not to reduce any payment to Licensor as a result thereof. All amounts due hereunder shall be grossed-up for any withholding taxes imposed by any foreign government. If Licensee claims exemption from any tax, then it shall furnish Licensor with a valid tax exemption certificate issued by or acceptable to the applicable taxing jurisdiction or entity.
4.4 Audit. Upon reasonable advance written notice, Licensor (or an independent auditor reasonably acceptable to Licensee) shall have the right to verify Licensee's compliance with this Agreement. Licensee shall make its systems and all applicable books and records available for such inspection during normal business hours at Licensee's principal place of business. Any audit shall be at Licensor's expense, unless it discloses an underpayment by Licensee for the audited period in excess of 5%, in which case Licensee shall reimburse Licensor for such expenses.
5.1 Definition. The term Confidential Information means all trade secrets, know-how, inventions, developments, software and other financial, business or technical information that are disclosed by or for a party in relation to this Agreement, that are marked or otherwise identified as proprietary or confidential at time of disclosure or that by their nature would be understood by a reasonable person to be proprietary or confidential (and including all copies, abstracts, summaries, analyses and derivatives thereof). Confidential Information shall not include any information that the receiving party can demonstrate is (a) rightfully furnished to it without restriction by a third party without breach of any obligation to the disclosing party, (b) generally available to the public without breach of this Agreement or (c) independently developed by it without reliance on such information. All Software, Documentation and pricing information, and all results, analyses and other information related to any functionnal, performance and benchmark testing of the Software by Licensee, are deemed to be Licensor's Confidential Information.
5.2 Confidentiality. Each party shall use reasonable care to keep the other's Confidential Information secret and, except for the specific rights granted by this Agreement, neither party shall possess, access, use, reproduce or disclose any of the other's Confidential Information without its prior written consent. The receiving party may disclose Confidential Information only to its employees and contractors who have a need to know for the permitted purpose and who are bound to safeguard the Confidential Information pursuant to obligations that are at least as protective as the restrictions in this Agreement. Each party shall be responsible for any breach of confidentiality by its employees and contractors. Promptly after any termination of this Agreement (or at the disclosing party's request at any other time), the receiving party shall return all of the other's tangible Confidential Information, permanently erase all Confidential Information from any storage media and destroy all information, records and materials developed therefrom. Each party may disclose only the general nature, but not the specific terms, of this Agreement without the prior written consent of the other party; provided, either party may provide a copy of this Agreement or otherwise disclose its terms in connection with any legal or regulatory requirement, financing transaction or due diligence inquiry.
6. PROPRIETARY RIGHTS
6.1 Applications. As between the parties, Licensee owns and retains all rights, title and interests (including patent rights, copyright rights, trade secret rights and other intellectual property and proprietary rights) in and to its Applications (but not any Software included or used therein). Licensee shall not embed, use or distribute any open source, copyleft or community source code (including without limitation, any libraries, code or other materials that are licensed or distributed under the GPL, LGPL, CDDL or any similar license or distribution model described by the Open Source Initiative at www.opensource.org) in connection with any Application, Licensed Service or other Licensed Distribution in any manner that would materially restrict the ability of Licensee to preserve and protect all intellectual property rights and proprietary interests in the Application or Licensed Service, or in any manner that requires, or purports to require: (a) any Software be disclosed or distributed in source code form or be licensed for the purpose of making derivative works; (b) any restriction on the consideration to be charged for the use or distribution of any Software; (c) the creation of any obligation regarding Licensor’s intellectual property or proprietary rights, or the grant to any third party of any rights or immunities under Licensor’s intellectual property or proprietary rights; or (d) any other limitation, restriction or condition on the right of Licensor with respect to use or distribution of its own intellectual property or proprietary rights.
6.2 Sublicenses. Licensee shall not sublicense the use of or distribute any Software or Application, except as included or used in a Licensed Distribution, and then only to end user customers. All Licensed Services shall be provided pursuant to enforceable terms of service (or service agreement), and all other Licensed Distributions shall be made pursuant to an enforceable sublicense agreement, in either case, that contains provisions for Licensor's benefit that are at least as protective of Licensor (and its rights in and to the Software) as the provisions of this Agreement and all restrictions, disclaimers and limitations herein, that prohibits any further sublicensing or distribution and that terminates automatically upon any expiration or termination of this Agreement.
6.3 Restrictions. Except and only to the extent expressly permitted in this Agreement, Licensee shall not directly or indirectly (a) use any of Licensor's Confidential Information to create any software or documentation that is similar to any Software or Documentation, (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code or underlying organization, structures, ideas or algorithms of the Software (except and only to the extent these restrictions are expressly prohibited by applicable statutory law), (c) encumber, sublicense, distribute, transfer, rent, lease or use the Software, (d) copy, adapt, translate, localize, port, combine, integrate, bundle, create derivative works of or otherwise modify any Software or Documentation, (e) use or allow the transfer, transmission, export or re-export of all or any part of the Software or any product thereof, in violation of any export control laws or regulations of the United States or any other relevant jurisdiction or (f) permit any third party to engage in any of the foregoing proscribed acts.
6.4 Software. Except for the License expressly granted hereunder, no other right or license is granted (by implication, estoppel or otherwise), no other use is permitted and (as between the parties) Licensor owns and retains all rights, title and interests (including patent rights, copyright rights, trade secret rights and other intellectual property and proprietary rights) in and to the Software, Documentation and Support Services. Licensee agrees that it shall not take any action inconsistent with such title and ownership, and that Licensor is free to reuse all suggestions and feedback regarding the Software provided by Licensee.
6.5 Markings. Licensee shall not obscure, alter or remove any printed or on-screen proprietary or legal notice displayed by or contained on or in the Software or Documentation.
6.6 Third Party Software. The Software may operate, interface or be delivered with software or other technology (In-Licensed Code) that is licensed from and owned by third parties (In-Licensors), the use of which may be subject to additional or different terms set forth in the applicable open source or other license described in the Documentation. Licensee unconditionally agrees that the In-Licensors (a) make no representation or warranty to Licensee concerning the In-Licensed Code or Software, (b) have no obligation or liability to Licensee as a result of this Agreement and (c) are intended third party beneficiaries of this Agreement. Upon Licensee's specific written request received during the term of this Agreement, Licensor will make available to Licensee the source code for In-Licensed Code, but only if such source code was made available to Licensor and doing so is required by the applicable license.
7. LIMITED WARRANTIES AND DISCLAIMERS
7.1 Support Services. Licensor warrants to Licensee that the Support Services will be performed in a professional and workmanlike manner. Any warranty claim under this Section 7.1 must be made by Licensee in writing within 30 days after performance of the nonconforming Support Service. Licensor's sole obligation and Licensee's exclusive remedy in respect thereof is to reperform the nonconforming Support Service or, at Licensor's sole discretion, terminate this Agreement in respect of Support Services and refund to Licensee that portion of any pre-paid License Fees allocated by Licensor for Support Services, pro-rated for the remainder of the then current support term.
7.2 Software. Licensor warrants to Licensee that, as delivered by Licensor, the Software will substantially comply with the Documentation for 90 days after Acceptance (or such other warranty period expressly specified in the Sales Order, the Warranty Period). Any warranty claim under this Section 7.2 must be made in writing during the Warranty Period. Licensor's sole obligation and Licensee's exclusive remedy in respect thereof is to use reasonable efforts to repair or replace the nonconforming Software or, at Licensor's sole discretion, terminate this Agreement upon written notice and refund the License Fees paid by Licensee upon return of the Software.
7.3 Exclusions. The provisions of Section 7.1 and Section 7.2 shall apply only in the case of a fee-bearing Pro License or an Enterprise License, and shall not apply in the case of any Pro License used under the Free Tier or Developer License.
7.4 Disclaimers. EXCEPT AS EXPRESSLY SPECIFIED HEREIN, THE SOFTWARE, DOCUMENTATION AND SUPPORT SERVICES ARE PROVIDED "AS IS" WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. NEITHER LICENSOR NOR ITS LICENSORS WARRANT THAT THE SOFTWARE WILL BE COMPATIBLE WITH ANY APPLICATION OR OTHERWISE MEET LICENSEE'S BUSINESS REQUIREMENTS, OR THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, LICENSOR (FOR ITSELF AND ITS LICENSORS) HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SOFTWARE, DOCUMENTATION AND SUPPORT SERVICES INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, ACCURACY, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
8.1 Licensee. Licensee agrees to defend Licensor against any claim by a third party that is related to (a) any Application, (b) Licensee's breach of any representation, warranty, covenant or other agreement made herein or (c) claims excluded under Section 8.2(b), and to indemnify Licensor for settlement amounts or judgments for damages, liabilities, costs and expenses (including reasonable attorneys' fees) awarded and arising out of such claims.
a. Infringement. Except as provided below, Licensor agrees to defend Licensee against any claim by a third party that the Software infringes a valid US patent (issued as of the date of Acceptance), copyright or trade secret of such third party, and to indemnify Licensee for settlement amounts or judgments for damages, liabilities, costs and expenses (including reasonable attorneys' fees) awarded and arising out of such claims. If any Software becomes or, in Licensor's opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Licensor may, at its option and expense (i) obtain for Licensee the right to continue using such Software or (ii) replace or modify such Software so that it becomes non-infringing without substantially compromising its principal functions. If (i) and (ii) are not reasonably available to Licensor, then it may (iii) terminate this Agreement upon written notice to Licensee and, after return of the Software, refund the License Fees pre-paid by Licensee, pro-rated for the remainder of the period for which such fees have been pre-paid.
b. Exclusions. Licensor shall have no liability or obligation hereunder with respect to any claim based upon (i) any use of Software not strictly in accordance with this Agreement, (ii) any use of Software in an application or environment or on a platform or with devices for which it was not designed or contemplated, (iii) alterations, combinations or enhancements of the Software not created by Licensor, (iv) Software that complies with Licensee's specific requirements, (v) Licensee's continuing allegedly infringing activity after being notified thereof or its continuing use of any version of the Software after being provided modifications that would have avoided the alleged infringement or (vi) any intellectual property right in which Licensee or any of its affiliates has an interest. In addition, Licensor’s obligations under the provisions of Section 8.2 shall apply only in the case of a fee-bearing Pro License or an Enterprise License, and shall not apply in the case of any Pro License used under the Free Tier or Developer License.
c. Entire Liability. The foregoing states Licensor's entire liability, and Licensee's exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by the Software or any part thereof or by its use or operation.
8.3 Conditions. The indemnifying party's obligations hereunder are conditioned on (a) the party seeking indemnification providing prompt written notice thereof and reasonable cooperation, information, and assistance in connection therewith and (b) the indemnifying party having sole control and authority to defend, settle or compromise such claim. The indemnifying party shall not be responsible for any settlement it does not approve in writing.
9. LIMITATION OF LIABILITY
EXCEPT TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, OR IN THE CASE OF (I) BREACH OF SECTION 5 (CONFIDENTIALITY) OR SECTION 6 (PROPRIETARY RIGHTS) OR (II) LIABILITIES PURSUANT TO SECTION 8 (INDEMNIFICATION), IN NO EVENT SHALL EITHER PARTY (OR LICENSOR'S LICENSORS) BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, (B) LOSS OF DATA, LOSS OR INTERRUPTION OF USE, OR COSTS OF PROCURING SUBSTITUTE TECHNOLOGIES, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, (D) IN THE CASE OF LICENSOR (AND ITS LICENSORS), AGGREGATE DAMAGES IN EXCESS OF THE AMOUNT PAID HEREUNDER DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, OR (E) IN THE CASE OF LICENSEE, AGGREGATE DAMAGES IN EXCESS OF THE TOTAL AMOUNT PAYABLE HEREUNDER, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
10. TERM AND TERMINATION
10.1 Term. This Agreement shall commence upon Acceptance and, unless terminated earlier as provided herein, terminate upon any expiration or termination of the License Term.
10.2 Convenience. Unless specified otherwise during Registration or in the Sales Order, Licensee may terminate its License and this Agreement at any time for its convenience upon at least 30 days prior written notice to Licensor; provided, that together with such notice, Licensee shall pay Licensor all past due amounts and all other amounts payable in respect of the remainder of the License Term.
10.3 Termination. This Agreement may be terminated by either party (a) if the other party materially breaches a provision of this Agreement and fails to cure such breach within 30 days (10 days in the case of any non-payment) after receiving written notice of such breach from the non-breaching party or (b) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party's property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within 90 days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course.
10.4 Effects of Termination. Upon termination of this Agreement for any reason, the License and all other rights, obligations and licenses of the parties hereunder shall cease, except that the following shall survive: (a) all obligations that accrued prior to the effective date of termination (including without limitation, payment obligations) and any remedies for breach of this Agreement; (b) Licensee shall stop using, de-install and destroy all copies of the Software, Documentation and Applications, stop providing Licensed Services and stop making other Licensed Distributions; and (c) the provisions of Sections 4 (Payments), 5 (Confidentiality), 6 (Proprietary Rights), 7 (Limited Warranties and Disclaimers), 8 (Indemnification), 9 (Limitation of Liability), 11 (General Provisions) and this Section 10.
11. GENERAL PROVISIONS
11.1 Entire Agreement. This Agreement (together with Registration records and the Sales Order) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom). Any inconsistent or additional terms on any related purchase order, confirmation or similar form, even if signed by the parties hereafter, shall have no effect under this Agreement. No amendment, consent or waiver under this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. Except as specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is in English only, which language shall be controlling in all respects. No version of this Agreement in another language shall be binding or of any effect.
11.2 Publicity. Licensee hereby consents to Licensor's inclusion of its name and logos in customer listings that may be published as part of Licensor's marketing efforts. Except as required by any applicable law or regulation, neither party shall originate any other publicity, news release or other public announcement relating to this Agreement without the prior written approval of the other party, not to be unreasonably delayed or withheld.
11.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, USA, without regard to its conflicts of law provisions. In the event of any conflict between US and foreign laws, regulations and rules, US laws, regulations and rules shall govern. Neither the United Nations Convention on Contracts for the International Sale of Goods nor any implementation of the Uniform Computer Information Transactions Act in any jurisdiction shall apply to this Agreement. Unless waived by Licensor in its sole discretion, the exclusive jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in Massachusetts having jurisdiction over Licensor's facility, and both parties consent to the exclusive jurisdiction of such courts with respect to any such action. In any action or proceeding to enforce this Agreement, the prevailing party will be entitled to recover the costs and expenses (including reasonable attorneys' fees) that it incurred in connection with such action or proceeding and enforcing any judgment or order obtained.
11.4 Remedies. The failure of either party to enforce its rights or remedies under this Agreement at any time or for any period will not be construed as a waiver of such rights or remedies, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. Each party agrees that, in the event of any breach or threatened breach of Section 5 or Section 6, the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, in addition to any other remedy, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of proving actual damages or posting any bond or surety.
11.5 Notices. All notices under this Agreement will be in writing, in English and delivered to the parties at their respective addresses stated herein, during Registration or in the Sales Order or at such other address designated by written notice. Notices will be deemed duly given and effective: when receipt is electronically confirmed, if transmitted by facsimile or electronic mail; or when received, if personally delivered or sent by overnight courier or certified or registered mail, return receipt requested.
11.6 Assignment. This Agreement and the rights and obligations hereunder may not be assigned or otherwise transferred by either party without the prior written consent of the other, not to be unreasonably withheld. However, without consent, Licensor may subcontract performance of the Support Services and Licensor may assign its rights and obligations hereunder to any of its affiliates or to any successor to all or substantially all of its business that concerns this Agreement (whether by sale of stock or assets, merger, consolidation or otherwise). Any attempted transfer in violation hereof will be void and of no effect. This Agreement will be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the parties.
11.7 Independent Contractors. The parties shall be independent contractors in their performance under this Agreement, and nothing contained herein will constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose.
11.8 Government. If any user of the Software or Documentation is an agency, department or other entity of the United States Government, then the use, duplication, reproduction, modification, release, disclosure or transfer of the Software or Documentation is restricted in accordance with FAR 12.212 for civilian agencies and DFAR 227.7202 for military agencies. The Software is commercial computer software, the Documentation is commercial computer software documentation, and their use is further restricted in accordance with the terms of this Agreement.
11.9 Acknowledgment. Licensee acknowledges that (a) it has read and understands this Agreement, (b) it has had an opportunity to have its legal counsel review this Agreement, (c) this Agreement has the same force and effect as a signed agreement, (d) Licensor requires identification of the Licensee before issuing this License and (e) issuance of this License does not constitute general publication of the Software or Documentation.