NEUVECTOR END USER LICENSE AGREEMENT
BY EITHER (A) CLICKING TO ACCEPT THIS NEUVECTOR END USER LICENSE AGREEMENT (THE “AGREEMENT”), (B) DOWNLOADING, INSTALLING AND/OR USING THE NEUVECTOR PROPRIETARY CONTAINER SECURITY SOFTWARE SOLUTION (COLLECTIVELY, THE “SOFTWARE”), OR (C) ENTERING INTO AN ORDERING DOCUMENT EXECUTED OR OTHERWISE AGREED TO BY THE PARTIES (WHICH MAY BE IN THE FORM OF A QUOTE) OR YOU AND NEUVECOTR’S AUTHORIZED RESALE PARTNER (“RESELLER”) AND REFERENCING THIS AGREEMENT (“ORDER FORM”) YOU AGREE TO THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”), AND YOU AGREE THAT YOU ARE BOUND BY AND ARE A PARTY TO THIS AGREEMENT. THE “CUSTOMER” HEREUNDER IS THE CUSTOMER IDENITIFIED ON AN ORDER FORM OR OTHER ONLINE ORDERING AGREEMENT. YOU WARRANT THAT YOU HAVE THE LEGAL CAPACITY TO ENTER INTO CONTRACTS ON BEHALF OF THE ORGANIZATION YOU REPRESENT.
YOUR USE OF THE SOFTWARE IS EXPRESSLY CONDITIONED ON YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT INSTALL OR USE THE SOFTWARE.
1. NeuVector Software.
1.1. Paid License. Customer may obtain a license to the Software under one or more Order Forms. Conditioned upon your compliance with the terms and conditions of this Agreement, including the applicable payment terms agreed upon between NeuVector and you or you and a Reseller, NeuVector grants you a revocable, non-exclusive, non-sublicensable and non-transferable license to install and use the Software in order to benefit from its functionality as designed by NeuVector, solely for your internal business purposes for the term stated on the applicable Order Form ("Paid License").
1.2 Paid License Methods. The Software license may be issued using the following methods:
1.2.1 Standard. Licenses are purchased for the number of nodes or vCPUs on which the Software will be deployed. Licenses are tied to specific cluster(s).
1.2.2 Auto-Scaling*. Licenses are purchased based on the estimated average nodes or vCPUs on which the Software will be deployed. Licenses will allow scaling up to a maximum number of nodes or vCPUs (# for average and maximum for each cluster to be provided by customer)
1.2.3 Multi-Use*. Licenses are purchased based on the number of nodes or vCPUs on which the Software will be deployed. Licenses may be applied to a maximum number of clusters (# provided by customer), with total number of nodes or vCPUs across all clusters not to exceed the licensed number of nodes or vCPUs.
*Usage Reporting and True-Ups. Monthly usage reporting and quarterly true-ups are required for Auto-Scaling and Multi-Use licenses. Customer will run a NeuVector Usage Report for all NeuVector deployments and submit to NeuVector’s Service Desk via a trouble ticket. License overages are subject to additional purchases which can be co-terminated to the original license date.
1.3. Trial License. If you are downloading and using the Software for the sole purpose of completing a free trial of the Software, in addition to the other terms and conditions contained herein, and conditioned upon your compliance with the terms and conditions of this Agreement, NeuVector grants you a revocable, non-exclusive, non-sublicensable and non-transferable license to install and use the Software, for the number of instances of use or virtual machine(s) agreed upon between NeuVector and you or you and NeuVector’s authorized reseller, strictly for your internal evaluation and review purposes and not for production purposes ("Trial License"). After you have purchased a Paid License to the Software, NeuVector shall remove all limitations in the Trial License. The Trial License granted hereunder is effective for the period of time communicated to Customer by NeuVector or the Reseller for the trial when Customer accepted this Agreement for evaluation and review purposes (“Trial Period”) starting from the date Customer downloads the Software. Customer’s right to use the Software under the Trial License will immediately terminate upon the earlier of (i) the expiration of the Trial Period, or (ii) such time that Customer purchases a Paid License to the Software. You acknowledge that Software used under a Trial License during the Trial Period may contain limited functionality or function for a limited period of time and that NeuVector is licensing the Software under the Trial License on an "AS IS" basis without warranties or indemnities of any kind and NeuVector disclaims any liability to Customer of any kind. NeuVector may provide limited technical support during the Trial Period at NeuVector’s own discretion.
1.4. License to Documentation. Subject to the terms and conditions of this Agreement, NeuVector grants Customer a worldwide, limited, non-sublicensable, non-exclusive, non-transferable, revocable license to use and make a reasonable number of copies of the Documentation for Customer’s internal business purposes and training. For the purposes of this Agreement, “Documentation” means NeuVector’s generally published technical documentation regarding the Software. The Documentation does not include advertising, marketing materials, information disseminated via mailing lists, and other forms of public communication from NeuVector, even if such public communications are regarding the Software.
1.5. Limitations. The licenses set forth above may be limited by the number of instances of use or virtual machines or other license mechanisms described in the Order Form. Customer also agrees to comply with any other limitations on use, download, installation or access to the Software contained in an Order Form.
1.6. Restrictions. Except as expressly permitted under this Agreement, Customer agrees that it will not, and will not allow third parties to, directly or indirectly (a) modify, translate, copy or create derivative works based on the Software, (b) reverse assemble, reverse compile, reverse engineer, or decompile the Software or otherwise attempt to discover the object code, source code, except as and only to the extent this restriction is prohibited by law, (c) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Software available to any third party, (d) remove or obscure any copyright, trademark or other proprietary notices, legends or branding of NeuVector contained in or on the Software, (e) use the Software in any way that violates any applicable federal, state, local or international law or regulation, (f) attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Software, or (g) use or access the Software to build or support and/or assist a third party in building or supporting products or services competitive with the Software or (h) combine or distribute any of the Software with any software that is licensed under terms that seek to require that any of the Software (or any associated intellectual property rights) be provided in source code form (e.g., as “open source”), licensed to others to allow the creation or distribution of derivative works, or distributed without charge. NeuVector reserves the right to take action (including suspending Customer’s use of or access to Software), if it deems it reasonably appropriate or if it believes Customer is violating applicable law or there is a credible risk of harm to NeuVector, its Software or any of NeuVector’s other customers. For the avoidance of doubt, Customer’s installation of the Software shall not be deemed a derivative work and is authorized by the license grants above (as applicable).
1.7. Beta Products. NeuVector may occasionally make new services or new features of its existing services available to Customer for evaluation and testing (each, a “Beta Product(s)”). Beta Products will only be made available if Customer agrees to test such products in writing (email acceptable). For the avoidance of doubt, whether you choose to use the Beta Products is completely within Customer’s control. If Customer chooses to use a Beta Product, Customer understands and agrees that Beta Products are made available on an “AS IS,” and “AS AVAILABLE” basis and without any warranties, indemnities, or support commitments of any kind.
2. Open Source Software. The Software may contain software or other material that is distributed as "open source software" or under similar licensing or distribution terms ("Open Source Software"), which requires notices and/or additional terms and conditions. Such required notices and/or additional terms and conditions are found at https://neuvector.com/license.html. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable open source license for such Open Source Software.
3. Maintenance and Support Services. Maintenance and support services will be provided by NeuVector for the Software licensed under this Agreement as set forth at https://neuvector.com/sw-support-agreement/ (“Support Services”) Support may also be provided by a Reseller under separate terms agreed upon by such Reseller and Customer. NeuVector shall have no obligation to provide Support Services for Software that has been modified by Customer or a third party at Customer’s direction, except as otherwise agreed to by NeuVector in writing.
4. Fees and Payment.
4.1. Fees. Customer will pay all fees as specified in the Order Form (“Fees”). Payment obligations to NeuVector are non-cancelable and, except as expressly stated in this Agreement, non-refundable. NeuVector may modify Fees or introduce new Fees in its sole discretion; Customer understands that revised or new Fees may be required by changes in NeuVector business or offerings. NeuVector may modify or add new fees in NeuVector’s sole discretion provided that NeuVector gives you at least thirty (30) days’ advance written notice and that any new or revised fees for the Software will only become effective upon renewal of your subscription.
4.2. Payment Terms. All Fees shall be paid in United States dollars and shall be due thirty (30) days from the date of invoice. Unless otherwise agreed to by NeuVector, all payments shall be made by wire transfer of immediately available funds to an account designated by NeuVector, all wire transfer fees prepaid. Notwithstanding any other rights of NeuVector, in the event of late payment by Customer (other than a payment that is not made when due as a result of a bona fide dispute between the parties), NeuVector shall be entitled to interest on the amount owing at a rate of 1% per month or the highest rate allowed by applicable law, whichever is less, compounded on a daily basis from the due date of payment until the date of actual payment. If you are purchasing a license to the Software through a Reseller, then the applicable fees will be paid directly to the Reseller. Fees will be invoiced in arrears and otherwise in accordance with the relevant ordering documentation you have entered into with NeuVector or a Reseller.
4.3. Taxes. Any and all payments made by Customer to NeuVector in accordance with this Agreement are exclusive of any taxes that might be assessed against Customer by any jurisdiction. Customer shall pay or reimburse NeuVector for all value-added, sales, use, property and similar taxes; all customs duties, import fees, stamp duties, license fees and similar charges; and all other mandatory payments to government agencies of whatever kind, except taxes imposed on the net or gross income of NeuVector. All amounts payable to NeuVector under this Agreement shall be without set-off and without deduction of any taxes, levies, imposts, charges, withholdings and/or duties of any nature which may be levied or imposed, including without limitation, value added tax, customs duty and withholding tax. In the event of foreign withholding taxes, Customer agrees to provide NeuVector with the necessary withholding certificates or other documentation as requested.
5. Term and Termination.
5.1. Agreement Term. The term of this Agreement will begin on the start date of Customer’s initial Paid License term and shall continue for as long as any Order Form remains in effect, unless and until this Agreement is earlier terminated by either party pursuant to this “Term and Termination” section (“Term”). Each Order Form will have the term stated on such Order Form (“Initial Order Term”). Unless otherwise stated therein, each Order Form (and any included Paid License term) will automatically renew for periods equal to the Initial Order Term (“Renewal Order Term”) unless either party gives written notice to the other party of its intent not to renew within thirty days of the end of the Initial Order Term or the then-current Renewal Order Term. In the event of Customer termination, the Customer will provide at least thirty (30) days’ notice of its intent to not renew. Collectively, the Initial Term and Renewal Term shall be the “Term.”
5.2. Termination. Either party may also terminate this Agreement upon written notice to the other party if the other party materially breaches this Agreement and such breach is not cured within thirty (30) days after the non-breaching party provides written notice of such breach.
5.3. Effect of Termination. Upon any termination for cause by NeuVector, Customer will pay any unpaid Fees covering the remainder of the then-current term stated on the Order Form. In no event will any termination relieve Customer of the obligation to pay any Fees payable to NeuVector or its authorized reseller for the period prior to the effective date of termination. Upon any termination or expiration of this Agreement: (a) any Paid License shall terminate and Customer shall cease all use of Software, (b) upon termination, Customer must, at NeuVector’s option, either promptly destroy or return to NeuVector all copies of the Software in Customer’s possession or control.
5.4. Survival. The terms of the “Restrictions”, “Term and Termination”, “Intellectual Property”, “Disclaimer”, “Limitation of Liability”, “Indemnification”, “Confidentiality”, and “General Terms” sections and any rights to payments already accrued will survive any termination or expiration of this Agreement.
6. Intellectual Property.
6.1. Ownership. NeuVector owns the Software and the Documentation (collectively the “NeuVector Materials”). NeuVector Software is licensed, not sold. The Software is protected by United States copyright law and international treaties. Customer will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on or within the Software. NeuVector retains all right, title and interest (including, without limitation, all patent, copyright, trademarks, trade secret and other intellectual property rights) in and to the NeuVector Materials, all related and underlying technology and any updates, enhancements, upgrades, modifications, patches, workarounds, and fixes thereto and all derivative works of or modifications to any of the foregoing. There are no implied licenses under this Agreement and any rights not expressly set forth in this Agreement are hereby expressly reserved by NeuVector.
6.2. Feedback. Customer may from time to time provide suggestions, comments or other feedback with respect to the Software or any services provided hereunder (“Feedback”). NeuVector may want to incorporate this Feedback into its Software or services and this clause provides NeuVector with the necessary license to do so. Customer hereby grants to NeuVector and our assigns a royalty-free, worldwide, perpetual, irrevocable, fully transferable and sub-licensable right and license to use, disclose, reproduce, modify, create derivative works from, distribute, display and otherwise distribute and exploit any Feedback as NeuVector sees fit, entirely without obligation or restriction of any kind, except that NeuVector will not identify Customer as the provider of such Feedback.
7. Warranties and Disclaimers.
7.1. Performance Warranty.
7.1.1. NeuVector’s Warranty. NeuVector warrants that during the Term that the Software will perform in all material respects in accordance with the Documentation. In the event of a breach of the foregoing warranty, NeuVector’s sole obligation, and Customer’s exclusive remedy shall be for NeuVector to (i) correct any failure(s) of the Software to perform in all material respects in accordance with the Documentation or (ii) if NeuVector is unable to provide such a correction within thirty (30) days of receipt of notice of the applicable non-conformity, then upon request from Customer, NeuVector will promptly refund to Customer if purchased directly or via the authorized reseller from whom Customer has purchased NeuVector’s Software, the unused portion (on a pro-rata basis based on the number of months remaining in the then current term of Agreement) any pre-paid Fees paid by Customer to NeuVector or its authorized reseller for the applicable Software, provided that, upon payment of such refund, all licenses granted in this Agreement with respect to such Software shall immediately terminate. The warranty set forth in this Section does not apply if the applicable Software or any portion thereof: (a) has been altered, except by or on behalf NeuVector; (b) has not been used, installed, operated, repaired, or maintained in accordance with this Agreement and/or the Documentation; (c) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident; or (d) is used on equipment, products, or systems not meeting specifications identified by NeuVector in the Documentation. Additionally, the warranties set forth herein do not apply to any bug, defect or error caused by or attributable to software or hardware not supplied by NeuVector.
7.1.2. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE SOFTWARE, AND ANY SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND NEUVECTOR EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NEUVECTOR ALSO DOES NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE SOFTWARE WILL OPERATE IN COMBINATION WITH YOUR SOFTWARE. CUSTOMER ACKNOWLEDGES THAT NEUVECTOR DOES NOT WARRANT THAT THE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE OR THAT ALL ERRORS WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN TYPES OF WARRANTIES, SO THE ABOVE DISCLAIMERS MAY NOT APPLY TO CUSTOMER. THIS AGREEMENT GRANTS SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
8. Limitation of Liability.
8.1. Disclaimer of Certain Damages. IN NO EVENT SHALL NEUVECTOR OR ITS LICENSORS BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, OR THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2. Damages Cap. IN NO EVENT SHALL NEUVECTOR’S OR ITS LICENSORS’ AGGREGATE, CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL FEES CUSTOMER WAS REQUIRED TO PAY NEUVECTOR UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
8.3. Basis of the Bargain. CUSTOMER AGREES THAT THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE A REASONABLE ALLOCATION OF THE RISK BETWEEN THE PARTIES AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
9.1. NeuVector Indemnification. NeuVector will, at its expense (i) defend, or at its option settle, a claim brought against Customer by an unaffiliated third party alleging that the distribution or use by Customer of the Software infringes such party’s patent registered as of the Effective Date, or any copyright or trademark of such party, or makes unlawful use of such party’s trade secret (each a “Claim”) and (ii) indemnify Customer against and pay (a) any settlement of such Infringement Claim consented to by NeuVector or (b) any damages finally awarded by a court of competent jurisdiction to such third party as relief or remedy in such Infringement Claim. NeuVector will have no obligation to Customer to the extent any Infringement Claim or resulting award is based upon or results from: (i) Customer’s distribution or use of the Software in a country that is not a contracting state to the Patent Cooperation Treaty; (ii) the failure of Customer to use and/or distribute an update of the Software made available by NeuVector that would have avoided the Infringement Claim; (iii) a modification of the Software that is not performed by NeuVector; (iv) the combination, operation, or use of the Software with any other software, services or equipment not provided by NeuVector where there would be no Infringement Claims but for such combination; (v) specifications Customer provides to NeuVector; (vi) use or distribution of the Software other than in accordance with the terms and conditions of this Agreement, (vii) damages attributable to the value of the use of a non-NeuVector Software or service or (viii) any third party open source software.
9.2. NeuVector Remedies. If, during the Term of this Agreement, the Software is, or in NeuVector’s reasonable opinion is likely to become, the subject of an Infringement Claim, and/or an injunction as the result of an Infringement Claim, NeuVector may, at its expense and option: (i) obtain the right for Customer to continue to exercise the rights granted in the “Paid License” section above; (ii) modify the Software so that it becomes non-infringing but substantially functionally equivalent; or (iii) in the event that neither (i) or (ii) are commercially reasonable options, terminate Customer’s licenses with respect to the Software.
9.3. Indemnification by Customer. Customer agrees to defend and indemnify NeuVector, at Customer’s expense, against (a) any introduction of malicious code or malware into NeuVector’s Software or (b) a claim from a third party that the Device in whole or in part, or any software, hardware, materials or technology therein and/or Security Application with any other software, hardware, materials or technology used by Customer as part of the Device, infringes a patent, copyright or trademark of such third party or makes unlawful use of such party’s trade secret or (c) any claim that a Device harmed or caused damage to a third party (each of (a), (b) and (c) above, will also be considered a Claim), and Customer shall pay any settlement of such Claim or final judgment against NeuVector in any such Claim.
9.4. Conditions. The obligations of the indemnifying party (the “Indemnifying Party”) in this “Indemnification” section are conditioned upon the indemnified party (“Indemnified Party”) (i) notifying the Indemnifying Party promptly in writing of any threatened or pending Claim, provided that failure to provide such notice will only relieve the Indemnifying Party of its obligations under this “Indemnification” section to the extent its ability to defend or settle an applicable Claim is materially prejudiced by such failure to provide notice; (ii) giving Indemnifying Party, at Indemnifying Party expense, reasonable assistance and information requested by Indemnifying Party in connection with the defense and/or settlement of the Claim and (iii) tendering to Indemnifying Party sole control over the defense and settlement of the Claim. The Indemnified Party’s counsel will have the right to participate in the defense of the Claim, at Indemnified Party’s own expense. Indemnified Party will not, without the prior written consent of Indemnifying Party, make any prejudicial statement, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened Claim.
10.1. Definition. Each party (“Disclosing Party”) may disclose “Confidential Information” to the other party (“Receiving Party”) in connection with this Agreement, which is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including all Order Forms, as well as non-public business, product, technology and marketing information. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party; (c) is received from a third party without any obligation of confidentiality; or (d) was independently developed by the Receiving Party without use or reference to the Disclosing Party’s Confidential Information.
10.2. Protection and Use of Confidential Information. The Receiving Party will (a) protect the Disclosing Party’s Confidential Information using the same degree of care its uses to protect its own confidential or proprietary information of like importance, but in any case using no less than a reasonable degree of care, (b) limit access to the Confidential Information to those employees, affiliates, agents, consultants, legal advisors, financial advisors, and contractors (“Representatives”) who need to know such information in connection with this Agreement and who are bound by confidentiality and non-use obligations just as protective of the Disclosing Party’s Confidential Information as the terms of this Agreement; (c) except as expressly set forth herein, will not disclose any of Disclosing Party’s Confidential Information to any third parties without the Disclosing Party’s prior written consent; and (d) will not use the Disclosing Party’s Confidential Information for any purpose other than to fulfill its obligations under this Agreement. Nothing above will prevent either party from sharing Confidential Information with financial and legal advisors; provided, however, that the advisors are bound to confidentiality obligations at least as protective of the Disclosing Party as those in this Agreement.
10.3. Compelled Access or Disclosure. The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the access or disclosure.
11. Export. Customer acknowledges NeuVector’s products are subject to U.S. export control laws and regulations, including but not limited to Section 740.17(A) under the Export Administration Regulations (EAR) and is described in Section 740.17(B)(1). You agree to comply fully with all U.S. export laws and regulations to ensure that neither the Software nor any technical data related thereto nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations, including export limitations to countries subject to embargo/comprehensive trade sanctions or identified in Country Group E:1 or E:2 at Supp. No. 1 to 15 CFR part 740.
12. General Terms.
12.1. Publicity. Customer grants NeuVector the right to use Customer’s company name and logo as a reference for marketing or promotional purposes on NeuVector’s website and in other public or private communications with NeuVector existing or potential customers, subject to Customer’s standard trademark usage guidelines as provided to NeuVector from time-to-time.
12.2. Force Majeure. Neither NeuVector nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third-party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
12.3. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
12.4. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement; a person who is not a party to this Agreement may not enforce any of its terms under any applicable law.
12.5. Notice. Except as otherwise set forth herein, all notices under this Agreement will be provided by email. Notices to NeuVector must be sent to [email protected] except for notices related to breach of contract or indemnification, which must be sent to NeuVector, Inc., corporate address, Attention: Chief Executive Officer. Notices will be deemed to have been duly given (a) the business day after it is sent, in the case of notices through email; and (b) the same day, in the case of notices through the NeuVector website.
12.6. Anti-Corruption. Customer acknowledges that it is aware of, understands and has complied and will comply with, all applicable U.S. and foreign anti-corruption laws, including without limitation, the U.S. Foreign Corrupt Practices Act (“FCPA”) and the U.K. Bribery Act. Without limiting the foregoing, Customer and its employees and agents shall not directly or indirectly make any offer, payment, or promise to pay; authorize payment; or offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing any act or decision of an official of any government within the Territory or the United States Government (including a decision not to act) or inducing such a person to use his or her influence to affect any such governmental act or decision in order to assist Customer in obtaining, retaining or directing any such business
12.7. Amendment and Waivers. No modification or amendment to this Agreement will be effective unless made in writing and signed by an authorized representative of both parties. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. No waiver under this Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
12.8. Severability. This Agreement will be enforced to the fullest extent permitted under applicable law. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
12.9. Assignment. Neither party will assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, NeuVector may assign this Agreement in its entirety (including all Schedules), without consent of Customer, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of NeuVector’s assets. Any purported assignment in violation of this “Assignment” section is void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.10. Governing Law and Venue. This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law of this Agreement, any arbitration conducted hereunder shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The state and federal courts located in Santa Clara County, California will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement or its formation, interpretation or enforcement, including any appeal of an arbitration award or for trial court proceedings if the arbitration provision below is found to be unenforceable. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
12.11. Entire Agreement. This Agreement, including all referenced pages and Schedules, if applicable, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Without limiting the foregoing, this Agreement supersedes the terms of any online agreement electronically accepted by Customer or any Authorized Users. However, to the extent of any conflict or inconsistency between the provisions in this Agreement and any other documents or pages referenced in this Agreement, the following order of precedence will apply: (1) the terms of any Order Form (if any), (2) this Agreement and (3) any other documents or pages referenced in this Agreement. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order to NeuVector if purchased directly or received by NeuVector from its authorized reseller on the Customer’s behalf, vendor onboarding process or web portal, or any other Customer order documentation (excluding Schedules) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.
12.12. U.S. Government End Users. If Customer is a branch or agency of the United States Government, the terms of this “U.S. Government End Users” section apply. The Software contains “commercial computer software” as that term is described in DFAR 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or the documentation related to such commercial computer software subject to the terms of this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.11 (Technical Data) of the Federal Acquisition Regulations and its successors. If acquired by or on behalf of any agency within the Department of Defense, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202 of the DOD FAR Supplement and its successors.