IMPORTANT: DO NOT DOWNLOAD OR USE THIS SOFTWARE UNTIL YOU (THE “LICENSEE”) HAVE READ AND AGREED TO THE TERMS OF THIS AGREEMENT.
THIS AGREEMENT GOVERNS YOUR USE OF THE SOFTWARE. BY CLICKING ON THE “I ACCEPT” BUTTON OR DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE, YOU ACKNOWLEDGE AND AGREE THAT ALL SUCH USE IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT (“Agreement”). Any such use will constitute such acceptance and result in a binding and legally enforceable agreement between Licensee and IP Fabric Inc, if the Agreement is governed by the laws of the state of New York pursuant to Section 15.9, or any one of its subsidiaries or affiliated companies, including without limitation IP Fabric s.r.o., if the Agreement is governed by the laws of the Czech Republic pursuant to Section 15.9 (collectively referred to as “IP Fabric”). If you are accepting these terms on behalf of any corporation, partnership or other entity, you represent and warrant that you are authorized to legally bind such entity to this Agreement.
1.1. License Grant. Subject to the terms and condition of this Agreement, IP Fabric hereby grants to Licensee a non-exclusive, non-transferrable, non-sublicensable, non-commercial and personal license, permitting Licensee, its Affiliates and their respective Authorized Users to download, install and use the Software solely for Licensee and its Affiliates’ internal business operations and in accordance with the Documentation (the “License”).
1.2. Scope of License. The License level is determined based on the number of managed active network elements and depends on the extent of the managed. The following elements are counted towards the License: router, switch, firewall, wireless controller, accelerator, and load balancer to which access has been permitted and where analysis has been successfully carried out.
1.3. Maintenance and Services. The License includes all updates, patches, upgrades, bug fixes, remote system management, and 8x5 support services (the “Maintenance”). IP Fabric is not responsible for providing Maintenance under this Agreement to or for the benefit of any Licensee: (1) if the Software has been altered, revised, changed, enhanced, or modified in any manner not authorized in writing in advance by IP Fabric; (2) in connection with any bug if IP Fabric has previously provided corrections for the bug; (3) in connection with any bugs or problems caused by errors, defects, problems, alterations, revisions, changes, enhancements, or modifications in the database, operating system, third-party software (other than third-party software bundled with the Software by IP Fabric or approved by IP Fabric), hardware, or any system or networking utilized by an Licensee; (4) if the Software or related software or systems have been subjected to abuse, misuse, improper handling, accident, or neglect; or (5) if any party other than IP Fabric (or a person or entity authorized by IP Fabric) has provided any services in the nature of maintenance and technical support services to the Licensee with respect to the Software. IP Fabric is not obligated to provide any technical support services on site at the facilities of Licensee. If IP Fabric agrees, in its sole discretion, to provide any technical support services on site, these services will be provided only upon submission by Licensee of a purchase order agreeing to pay for the services on a time and materials basis.
1.4. Use by Authorized Users. Licensee may allow Authorized Users to use the Software solely on Licensee’s behalf for Licensee’s internal operations. Licensee shall be responsible for ensuring that Authorized Users comply with the terms of this Agreement and Licensee is liable for any breach of the same by such Authorized Users. To the extent permitted by applicable law, Licensee agrees and acknowledges that third parties using the Software on Licensee’s behalf bring all claims related to the Software to Licensee and waive all such claims directly against IP Fabric and its Affiliates.
1.5. Term. The Software is a fully managed, licensed solution for a renewable one (1) year period following the Delivery Date (the “Initial Period”), if not agreed otherwise in purchase order or other purchase documentation.
1.6. License Restrictions. Except as expressly permitted by IP Fabric, Licensee will not, nor will it permit or authorize anyone to:
1.6.1. distribute, convey, lend, lease, share, sell, transfer, market, sublicense, rent or otherwise make available any component of the Software;
1.6.2. copy, decompile, disassemble or reverse engineer or otherwise attempt to extract or derive the source code or any methods, algorithms or procedures from the Software, or modify, adapt, translate or create derivative works based upon the Software except as expressly authorized by the mandatory provisions of applicable law;
1.6.3. use, offer or otherwise exploit the Software as a revenue-generating or commercial product or service to or for any third-party, including, without limitation, hosting, outsourcing, service bureau, application service provider, or software as a service (SaaS) functionality;
1.6.4. use the Software for purposes of developing a product that is competitive with any IP Fabric product or service;
1.6.5. remove any copyright, trademark or other proprietary notice from the Software; or alter or circumvent any Software license key or any other restrictions or limitations on Software access or use.
1.7. Retention of Rights. The Software provided hereunder is licensed, not sold. To the extent not expressly licensed to Licensee hereunder, IP Fabric, and their respective suppliers or licensors where applicable, reserve and retain all right, title and interest in and to the Software and all Intellectual Property Rights embodied therein. Licensee shall maintain reasonable technical and procedural access controls and system security to safeguard the Software and Documentation and shall be directly responsible for any violations of this Agreement by anyone that it or any of its Affiliates has allowed to access the Software.
1.8. Feedback. If Licensee chooses to provide IP Fabric with ideas or suggestions regarding any IP Fabric products or services, Licensee agrees that IP Fabric is free to use any such ideas and suggestions for any purpose, including, without limitation, developing, improving and marketing products and services, without any liability or payment of any kind to Licensee.
2. Consulting Services
2.1. Services. The Software licenses and Maintenance provided pursuant to this Agreement do not include consulting, implementation, education or other services. Payment of Software license fees due under this Agreement shall not be contingent under any circumstances upon the performance of any such services.
2.2. Scope of Services. IP Fabric may provide Consulting Services to Licensee, which shall be limited to implementation, configuration and software enablement services provided on a time and materials basis.
2.3. Rights to Deliverables. IP Fabric retains all right, title and interest in and to the Software and all deliverables resulting from performance of the Consulting Services, including all methodologies, designs, improvements to the Software, know how, and all Intellectual Property Rights thereto.
2.4. License to Deliverables. IP Fabric hereby grants Licensee a non-exclusive license to use any deliverables or work product created pursuant to this section in connection with Licensee's authorized use of the Software (the “Consulting license”). In no way shall the Consulting License expand, extend, modify, change or alter the License granted to Licensee to use the Software.
3. Warranties and disclaimers
3.1. Warranty. IP Fabric warrants that the Software delivered under this Agreement will, for a period of ninety (90) days from its Delivery Date (“Warranty Period"), operate substantially in conformity with its applicable Documentation. Licensee is deemed to have accepted the Software on the Delivery Date. The Licensee must assert any claim for breach of this warranty within the Warranty Period. Licensee's exclusive remedy and IP Fabric’s sole liability with regard to any breach of this warranty will be, at IP Fabric's option and expense, to repair or replace the non-conforming Software.
3.2. No Liability. IP Fabric will have no liability for any warranty claim, or any obligation to correct any defect or problem with the Software, to the extent that it arises out of: (i) any use of the Software not in accordance with the Documentation; (ii) any unauthorized modification or alteration of the Software; or (iii) any use of the Software in combination with any third-party software or hardware not specified in the Documentation.
3.3. Warranty Claim. IP Fabric warrants that Consulting Services will be performed using reasonable care and skill consistent with generally accepted industry standards. For any claimed breach of this warranty, Licensee must notify IP Fabric of the warranty claim within ten (10) business days of Licensee’s receipt of the applicable Consulting Services. Licensee’s exclusive remedy and IP Fabric’s sole liability with regard to any breach of this warranty will be, at IP Fabric's option and expense, to either (i) re-perform the non-conforming Consulting Services; or (ii) refund to Licensee the fees paid for the non- conforming Consulting Services. Licensee shall provide reasonable assistance to IP Fabric in support of its efforts to furnish a remedy for any breach of this warranty.
3.4. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN SECTIONS 3.1 AND 3.3, ALL LICENSED SOFTWARE, DOCUMENTATION AND OTHER PRODUCTS, INFORMATION AND MATERIALS PROVIDED BY IP FABRIC ARE PROVIDED "AS IS." IP FABRIC MAKES NO WARRANTIES WITH RESPECT TO THE SOFTWARE OR ANY OTHER SUBJECT MATTER OF THIS AGREEMENT AND HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF IP FABRIC HAS BEEN INFORMED OF SUCH PURPOSE), AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, IP FABRIC MAKES NO WARRANTY OF ANY KIND THAT THE LICENSED SOFTWARE OR DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE'S OR OTHER PERSONS' REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE AND DEFECT OR BE ERROR FREE.
4. Limitation of Liability
4.1. LIMITATION OF LIABILITY. EXCEPT FOR (I) DEATH OR BODILY INJURY CAUSED BY A PARTY’S NEGLIGENCE, (II) EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, (III) LICENSEE’S VIOLATION OF IP FABRIC’S INTELLECTUAL PROPERTY RIGHTS AND (IV) THE EXTENT TO WHICH LIABILITY MAY NOT BE LAWFULLY LIMITED UNDER THE APPLICABLE LAW, EACH PARTY'S MAXIMUM, CUMULATIVE LIABILITY FOR ANY CLAIMS, LOSSES, COSTS (INCLUDING ATTORNEY'S FEES) AND OTHER DAMAGES ARISING UNDER OR RELATED TO THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION, WHETHER IN BREACH OF WARRANTY, CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, WILL BE LIMITED TO ACTUAL DAMAGES INCURRED, WHICH WILL IN NO EVENT EXCEED THE GREATER OF THE AMOUNT OF FEES PAID BY LICENSEE OR PAYABLE BY THE LICENSEE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE TIME THE CAUSE OF ACTION AROSE AND ATTRIBUTABLE TO THE SPECIFIC SOFTWARE, PRODUCTS OR SERVICES GIVING RISE TO SUCH DAMAGES, OR ONE THOUSAND U.S. DOLLARS ($1,000).
4.2. EXCLUSION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IP FABRIC OR ITS AFFILIATES WILL NOT BE LIABLE FOR (A) ANY LOSS OF ANY KIND, WHETHER IN TORT (INCLUDING FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY OR STRICT LIABILITY), CONTRACT, MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT) OR OTHERWISE, (B) DIRECT LOSS; (C) ACCIDENTAL LOSS, (D) INCIDENTAL LOSS, (E) CONSEQUENTIAL LOSS, SUCH AS LOSS OF SAVINGS, PROFITS OR REVENUES, LOSS OR CORRUPTION OF DATA, GOODWILL, OR REPUTATION, INACCURACY OF ANY DATA, THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR SOFTWARE, OR (F) ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWSOEVER ARISING AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. IP FABRIC SHALL USE REASONABLE EFFORTS TO PROTECT INFORMATION SUBMITTED BY YOU IN CONNECTION WITH THE SERVICES, BUT YOU AGREE THAT YOUR SUBMISSION OF SUCH INFORMATION IS AT YOUR SOLE RISK, AND YOU HEREBY RELEASE IP FABRIC, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, FROM ANY AND ALL LIABILITY TO YOU FOR ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.
4.3. Scope of Limitation. The limitations, exclusions and disclaimers contained in this Agreement are independent of any agreed remedy specified in this Agreement, and will apply to the fullest extent permitted by applicable law, even if any agreed remedy is found to have failed of its essential purpose. To the extent that IP Fabric may not, as a matter of law, disclaim any warranty or limit its liabilities, the scope or duration of such warranty and the extent of IP Fabric’s liability will be the minimum permitted under such law. If a waiver, right, or remedy is exercised pursuant to mandatory law, it shall be exercised solely for the purpose provided and in conformance with the procedures and limitations expressly provided for by such law.
4.4. No Third-Party Beneficiaries. The warranties and other obligations of IP Fabric under this Agreement run only to, and for the sole benefit of, Licensee, notwithstanding any rights to access or use the Software the Licensee may grant its Affiliates or third-party external users. Except as otherwise mandated by applicable law, no other person or entity will be considered a third-party beneficiary of this Agreement or otherwise entitled to receive or enforce any rights or remedies in relation to this Agreement.
5. Intellectual Property Infringement Indemnification
5.1. Indemnification. IP Fabric shall indemnify, defend and hold harmless Licensee and its Affiliates against any Intellectual Property Claim provided that Licensee (i) promptly notifies IP Fabric in writing of such Intellectual Property Claim; (ii) allows IP Fabric to have control of the defense and any related settlement negotiations; and (iii) provides IP Fabric with such information, authority and assistance necessary for the defense or settlement of the Intellectual Property Claim.
5.2. Exceptions. IP Fabric will not be liable for any Intellectual Property Claim arising from or based upon (i) any unauthorized use, reproduction or distribution of the Software; (ii) any modification or alteration of the Software without the prior written approval of IP Fabric; (iii) use of the Software in combination with any other software or hardware not provided or approved by IP Fabric; or (iv) use of the Software in a manner prohibited by any applicable law.
5.3. Remedies. If the Software becomes, or, in IP Fabric’s opinion, is likely to become, the subject of an Intellectual Property Claim, IP Fabric may, at its option and expense, either: (i) obtain the right for Licensee to continue using the Software in accordance with this Agreement; (ii) replace or modify the Software so that it becomes non-infringing while retaining substantially similar functionality; or (iii) if neither of the foregoing remedies can be reasonably effected by IP Fabric, terminate the license(s) for the subject Software (without need for a ruling by a court or arbitrator) and refund to Licensee a pro rata portion of the license fees received by IP Fabric with respect thereto, provided that such Software is returned to IP Fabric promptly after the effective date of any such termination.
5.4. Sole and exclusive remedy. This section 5 states IP Fabric's sole and entire obligation and liability, and Licensee's and its Affiliates' sole and exclusive right and remedy, for any Intellectual Property Claim.
6. Licensee Indemnification Obligation.
6.1. Indemnification.Licensee is responsible for Licensee’s, Affiliates’ and Authorized Users’ use of the Software and Licensee will indemnify, hold harmless and defend IP Fabric, its Affiliates and their officers, directors, employees, consultants, subsidiaries and agents (together, the “IP Fabric Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs (“Claim”) arising out of or in any way connected with: (a) Licensee’s access to, use of, or alleged use of, the Software; (b) Licensee’s violation of any portion of this Agreement, any representation, warranty, or agreement referenced in this Agreement, or any applicable law or regulation; (c) Licensee‘s violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; (d) any dispute or issue between Licensee and any third-party; and (e) all claims arising from or alleging fraud, intentional misconduct, criminal acts, or gross negligence committed by Licensee.
6.2. Right to Defense. To the fullest extent permitted under applicable law, IP Fabric Entities reserve the right, at their own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Licensee (without limiting Licensee’s indemnification obligations with respect to that matter), and in that case, Licensee agrees to cooperate with the respective IP Fabric Entity’s defense of that claim. Licensee will not enter into any settlement agreement in any Claim related to or concerning a IP Fabric Entity without prior written consent of the IP Fabric Entity unless such settlement provides the IP Fabric Entity with a complete release without imposing any additional costs or obligations and does not require admission of guilt or liability by the IP Fabric Entity.
7.1. Obligations. Each Party will hold in confidence the other Party's Confidential Information and will not disclose or use such Confidential Information except as necessary to exercise its express rights or perform its express obligations hereunder. Any Party’s disclosure of the other Party’s Confidential Information may be made only to those of its employees or consultants who need to know such information in connection herewith and who have agreed in writing to confidentiality terms that are no less restrictive than the requirements of this section. Each Party shall use all reasonable efforts to maintain the confidentiality of all of the other Party’s Confidential Information in its possession or control, but in no event less than the efforts that it ordinarily uses with respect to its own Confidential Information of similar nature and importance.
7.2. Exceptions. Notwithstanding the foregoing, a Party may disclose the other Party's Confidential Information to the extent that it is required to be disclosed in accordance with an order or requirement of a court, administrative agency or other governmental body, provided that such Party, to the extent permitted by applicable law, provides the other Party with prompt notice of such order or requirement in order that it may seek a protective order to protect the confidentiality of such information, take action to assure confidential handling of the Confidential Information, or take such other action as it deems appropriate to protect the Confidential Information. Each Party's confidentiality obligations hereunder will continue for a period of five (5) years following any termination of this Agreement, provided, however, that each Party's obligations will survive and continue in effect thereafter with respect to, and for so long as, any Confidential Information continues to be a trade secret under applicable law. The Parties acknowledge and agree that the Software and all pricing information shall be treated as the Confidential Information of IP Fabric.
8.1. Termination for Breach. Either Party may terminate this Agreement or individual Software licenses if the other Party fails to cure a material breach within thirty (30) days after written notice of such breach is received by the breaching Party, provided that IP Fabric may terminate this Agreement immediately upon any breach of Sections 1.6 and 1.7.
8.2. Effect of Termination. Upon expiration or termination of this Agreement or any Software license, all rights granted to Licensee under this Agreement will also terminate and Licensee shall: (i) immediately cease using the applicable Software and Documentation; and (ii) certify to IP Fabric within thirty (30) days after such expiration or termination that Licensee has destroyed or has returned to IP Fabric all copies of the applicable Software, any associated license keys, the Documentation and all other IP Fabric Confidential Information in its possession. Termination of this Agreement or any Software licenses shall not prevent either Party from pursuing all available legal remedies, nor shall such termination relieve Licensee's obligation to pay all fees that are owed as of the effective date of termination. All provisions of this Agreement relating to IP Fabric’s ownership of the Software, limitations of liability, disclaimers of warranties, confidentiality (for the time periods specified in this Agreement), waiver, audit, governing law and jurisdiction, in addition to any other provisions of this Agreement that would normally survive termination, shall survive termination of this Agreement for any reason.
9. Export Control. The Software may be subject to US export control laws, including the US Export Control Reform Act and its associated regulations. Licensee agrees that Licensee will not ship, transfer or export the Software into any country, or use the Software in any manner, prohibited by the United States Bureau of Industry and Security or economic sanctions regulations administered by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”), or any applicable export laws, restrictions or regulations. These laws include restrictions on destinations, end users and end use. By accepting this Agreement, Licensee confirms that Licensee is not a resident or citizen of any country currently embargoed by the U.S. and that Licensee is not otherwise prohibited from receiving the Software. Licensee shall comply with all applicable laws and complete all required undertakings (including obtaining any necessary export license or other governmental approval) prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the US.
10. US Government Rights. Each of the Documentation and the software components that constitute the Software is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Accordingly, if Licensee is an agency of the US Government or any contractor therefor, Licensee only receives those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
11. Force Majeure. Neither Party shall be liable in the event that its performance of this Agreement is prevented, or rendered so difficult or expensive as to be commercially impracticable, by reason of an act of God, disease, epidemic, pandemic, quarantine, labor dispute, unavailability of transportation, goods or services, governmental restrictions or actions, passage of law or any action taken by a governmental or public authority, including imposing an export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, war (declared or undeclared) or other hostilities, or by any other event, condition or cause which is not foreseeable on the Effective Date and is beyond the reasonable control of the Party. It is expressly agreed that any failure of the United States Government to issue a required license for the export of any Software ordered by Licensee shall constitute an event of force majeure. In the event of non-performance or delay in performance attributable to any such causes, the period allowed for performance of the applicable obligation under this Agreement will be extended for a period equal to the period of the delay. However, the Party so delayed shall use its best efforts, without obligation to expend substantial amounts not otherwise required under this Agreement, to remove or overcome the cause of delay. In the event that the performance of a Party is delayed for more than six (6) months, the other Party shall have the right, which shall be exercisable for so long as the cause of such delay shall continue to exist, to terminate this Agreement without liability for such termination.
12. Rules of Conduct. Licensee agrees to comply with all local, state, federal, and national laws, statutes, ordinances, and regulations that apply to Licensee’s use of the Software. Licensee may not (i) create, use, share and/or publish by any means in relation to the Software any material (text, words, images, sounds, videos, etc.) which would breach of a duty of confidentiality, infringe any intellectual property right or an individual’s right to privacy or which would incite the committing of an unlawful act (in particular, piracy, cracking or circulation of counterfeit software); (b) modify, distort, block, abnormally burden, disrupt, slow down and/or hinder the normal functioning of all or part of the Software, or its accessibility to other users, or the functioning of the partner networks of the Software, or attempt to do any of the above; (c) transmit or propagate any virus, trojan horse, worm, bomb, corrupted file and/or similar destructive device or corrupted data in relation to the Software, and/or organize, participate in or be involved in any way in an attack on IP Fabric’s servers and/or the Software; (d) create, supply or use alternative methods of using the Software; (e) make inappropriate use of the help service or the claim buttons or send untruthful reports to IP Fabric; (f) falsely claim to be an employee or representative of IP Fabric; or (g) falsely claim an endorsement in connection with the Software or with IP Fabric. These rules of conduct are not meant to be exhaustive and can be modified at any time by IP Fabric. In all cases, Licensee may only use the Software according to anticipated use of the Software.
13. Audit and Recordkeeping. While this Agreement is in effect and for one (1) year after the effective date of its termination, upon request by IP Fabric but not more than once per calendar year, Licensee shall conduct a self-audit of its use of the Software and, within ten (10) business days after receipt of such request, submit a written statement to IP Fabric verifying that it is in compliance with the terms and conditions of this Agreement. Such self-audit shall be in compliant with industry standards. IP Fabric shall have the right, on its own or through its designated agent or third-party accounting firm, to conduct an on-premises audit of Licensee's use and deployment of the Software for compliance with this Agreement. IP Fabric’s written request for audit will be submitted to Licensee at least fifteen (15) days prior to the specified audit date, and such audit shall be conducted during regular business hours and with the goal of minimizing the disruption to Licensee's business. If such audit discloses that Licensee is not in material compliance with the terms of this Agreement, then Licensee shall be responsible for the reasonable costs of the audit, in addition to any other fees or damages to which IP Fabric may be entitled under this Agreement and applicable law.
14. Software Update. From time to time, IP Fabric may automatically update or otherwise modify the Software, including, but not limited to, for purposes of enhancement of security functions, error correction and improvement of functions. Such updates or modifications may delete or change the nature of features or other aspects of the Software, including, but not limited to, functions you may rely upon. You acknowledge and agree that such activities may occur at IP Fabric's sole discretion and that IP Fabric may condition continued use of the Software upon your complete installation or acceptance of such update or modifications. Any updates or modifications shall be deemed to be, and shall constitute part of, the Software for purposes of this Agreement. By acceptance of this Agreement, you consent to such update or modification.
15. General Provisions
15.1. Definitions. Unless defined elsewhere in this Agreement, the capitalized terms utilized in this Agreement are defined as follows.
"Affiliate" means, with respect to a Party, any entity which controls, is controlled by, or is under common control with such Party, where “control" means the legal, beneficial or equitable ownership of at least a majority of the aggregate of all voting equity interests in such entity, but only for so long as such control exists.
"Agreement" means this End User License Agreement.
"Authorized User" means an employee or independent contractor of either Licensee or an Affiliate of Licensee who has been authorized by Licensee to use the Software in accordance with the terms and conditions of this Agreement.
"Confidential Information" means non-public information that is disclosed by or on behalf of a Party under or in relation to this Agreement that is identified as confidential at the time of disclosure or should be reasonably understood to be confidential or proprietary due to the nature of the information and/or the circumstances surrounding its disclosure. Confidential Information includes, but is not limited to, all trade secrets, know how, proprietary information, techniques, or technology, and data. Confidential Information does not include information which, and solely to the extent it (i) is generally available to the public other than as a result of a disclosure by the receiving Party or any of its representatives; (ii) was known to the receiving Party prior to the date hereof on a non-confidential basis from a source other than disclosing Party or its representatives; (iii) is independently developed by the receiving Party without the benefit of any of the disclosing Party's Confidential Information; (iv) becomes lawfully known to the receiving Party on a non-confidential basis from a source (other than disclosing Party or its representatives) who is not prohibited from disclosing the information to the receiving Party by any contractual, legal, fiduciary or other obligation or (v) was disclosed by the disclosing Party to a third-party without an obligation of confidence. In any dispute concerning the applicability of these exclusions, the burden of proof will be on the receiving Party and such proof will be by clear and convincingevidence.
"Consulting Services" means any mutually agreed upon consulting services performed by IP Fabric under the terms of this Agreement and any applicable agreed Statement(s) of Work.
"Delivery Date" means the date on which both the Software specified in the relevant Order Form and the license key(s) for such Software are initially made available (via download or otherwise) to Licensee.
"Documentation" means the then-current user documentation for the Software as may be provided by, and modified from time to time in the sole discretion of, IP Fabric. Documentation is available upon the request of Licensee at any time or upon Software download. Licensee agrees to be, and is hereby bound by, the terms of such documentation as if such documentation was attached to and made a part of this Agreement.
"Intellectual Property Claim" means a claim by a third-party against Licensee or its Affiliates that the Software, as delivered by IP Fabric, infringes a third-party copyright or trademark, or misappropriates a third-party trade secret.
"Intellectual Property Rights" means all patents and patent rights, utility models, copyright rights, mask work rights, trademark rights, trade secret rights, service marks, product names, trade names, design rights, registered designs, topography rights, database rights, rights of confidence, know-how and all other similar intellectual property or proprietary rights anywhere in the world, whether or not registered or statutory and including, without limitation, all applications and registrations with respect to the foregoing.
"Party" or "Parties" means IP Fabric and Licensee, individually and collectively as the case may be.
"Software" means a release of the IP Fabric (Automated Network Assurance Platform) software, in object code form, provided or made available to Licensee, as well as upgrades, patches, and updates and related services thereto that IP Fabric elects to make available at no additional charge to all of its customers. Unless otherwise indicated, the Software and Documentation are referred to collectively herein as “Software”.
"Statement of Work" means a document agreed to by the Parties that describes Consulting Services to be performed by IP Fabric pursuant to this Agreement.
15.2. Third Party Materials. The Software may include certain open source or other third-party software, data, or other materials (the “Third-Party Materials”) that are separately licensed by their respective owners. License terms and other information relating to such Third-Party Materials, including any availability of source code, may be found within the Documentation. IP Fabric makes no representation, warranty, or other commitment regarding the Third-Party Materials, and hereby disclaims any and all liability relating to Licensee’s use thereof.
15.3. Equitable Remedies. Licensee agrees that any violation of or non-compliance with any term or condition this Agreement by Licensee will cause irreparable harm to IP Fabric and its Affiliates for which monetary damages would be inadequate, and Licensee consents to IP Fabric obtaining any injunctive or equitable relief that IP Fabric deems necessary or appropriate in such circumstances. These remedies are in addition to any other remedies that may be available to IP Fabric under contract, at law or in equity.
15.4. Disclosures. Licensee hereby grants IP Fabric the right to take steps IP Fabric believes are reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement. Licensee agrees that IP Fabric has the right, without liability to you, to disclose any data and/or information to law enforcement authorities, government officials, and/or a third-party, as IP Fabric believes is reasonably necessary or appropriate to enforce and/or verify compliance with any part of this Agreement (including but not limited to IP Fabric's right to cooperate with any legal process relating to your use of the Software, and/or a third-party claim that your use of the Software is unlawful and/or infringes such third-party's rights).
15.5. Waiver and Severability. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is adjudicated to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
15.6. Assignment. Licensee will not assign or transfer this Agreement or its rights and obligations hereunder to any third-party without the prior written consent of IP Fabric. For purposes of this Section, any change of control of Licensee, whether by merger, sale of equity interests or otherwise, will constitute an assignment requiring the prior written consent of IP Fabric.
15.7. Information Practices. In order to verify the identity and contact information of Licensee and/or to support Licensee and improve the customer experience with the Software, IP Fabric may collect and use certain information relating to the use of the Software. This information may include size and number of databases and document objects, session information (e.g., number, duration, error messages, types/number of users and applications used) and browser and server configurations.
15.8. Amendment. IP Fabric reserves the right, in its sole and absolute discretion, to revise, update, change or modify certain terms of this Agreement for security, legal, best practice or regulatory reasons about which IP Fabric shall inform Licensee.. Licensee is encouraged to review IP Fabric’s website, and any notifications, messages and communications from us to ensure Licensee is abreast of any changes as they are made. Ongoing use of the Software implies consent to and acceptance of any changes.
15.9. Governing Law. Except to the extent expressly provided in the following paragraph, this Agreement and all matters arising out of it shall be governed by, and construed in accordance with, the laws of the state of New York without regard to any conflict of laws principles. If (a) you are not a U.S. citizen or entity; (b) you do not reside in the U.S.; (c) you are not accessing the Service from the U.S.; and (d) you are a citizen or entity of any European Union country, the governing law of this Agreement is the law of Czech Republic, but excluding any conflict of law rules. This Agreement shall not be governed by the United Nations Conventions on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded from any interpretation of this Agreement.
15.10. Dispute Resolution.
15.10.1. Except to the extent expressly provided in the following sub-section, all disputes arising from or relating to this Agreement shall be submitted for arbitration, solely. Demand shall be made to the American Arbitration Association and shall be conducted in New York by one arbitrator(s), unless the Parties mutually agree otherwise. Arbitration shall be in accordance with the commercial rules of the American Arbitration Association. The Award of the Arbitrator shall be final and judgment may be entered upon it in any court having jurisdiction thereof, and the prevailing party shall be entitled to costs and reasonable attorney's fees arising out of such arbitration.
15.10.2. If (a) you are not a U.S. citizen or entity; (b) you do not reside in the U.S.; (c) you are not accessing the Service from the U.S.; and (d) you are a citizen or entity of any European Union country, all disputes arising from or relating to this Agreement shall be finally decided with the Arbitration Court attached to the Czech Chamber of Commerce and the Agricultural Chamber of the Czech Republic according to its Rules by three arbitrators in accordance with the Rules of that Arbitration Court. The Parties agree that the arbitration award may be reviewed by other arbitrators at the request of either Party. The request for review shall be submitted by the requesting Party to the other Party and also to the arbitral tribunal no later than fifteen (15) days from the date on which the arbitration award was received. The Rules of that Arbitration Court will apply. The reviewers may change or confirm the contested judgment by an arbitration award. The arbitral award made in the proceedings under this paragraph is final and binding. If one of the Parties fails to submit a request for review pursuant to the preceding paragraph in due time, the arbitral award given in the original arbitration shall be final and binding.
15.11. Entire Agreement. This Agreement constitutes the entire agreement between Licensee and IP Fabric and governs Licensee’s use of the Software, superseding any prior agreements with respect to the same subject matter between Licensee and IP Fabric. In the event that Licensee installs the IP Fabric Product as defined in the terms and conditions of IP Fabric, Licensee will be bound by the terms of such terms and conditions. Licensee also may be subject to additional terms and conditions that may apply when Licensee uses affiliate services, third-party content, third-party software, or additional services.
15.12. Notifications and Contact. IP Fabric may notify you with respect to the Software by posting on the website, sending an email message to your email address or a letter via postal mail to your mailing address. Notices shall become effective immediately. IP Fabric may also contact you by email or push notification to send you additional information about the Software. For any question concerning this Agreement, you may contact IP Fabric via the following:
IP Fabric, Inc.
115 BROADWAY, 5th Floor
NEW YORK NY, 10006
Phone +1 (914) 752-2991
Email [email protected]
IP Fabric s.r.o.
Praha 2 - Nové Město, 120 00
Phone +420 720 022 997
Email [email protected]