JetPatch License and Services Agreement
1. PARTIES; FORMATION; BINDING EFFECT
This License and Services Agreement (this “Agreement”) is entered into by and between Intigua, Inc., doing business as JetPatch, a Delaware corporation with offices at 51 Pleasant Street, #1064, Malden, Massachusetts 02148, USA (“Licensor” or “JetPatch”) and the entity identified as the licensee (“Licensee,” “You,” or “Your”) in any of the Formation Events described in Section 1.1.
1.1 Formation Events. This Agreement is formed and Licensee is bound to its terms upon the occurrence of any of the following (each, a “Formation Event”):
(a) Direct Execution. Licensee’s execution of an Order Form that incorporates this Agreement by reference;
(b) Online Acceptance. Licensee’s affirmative acceptance of this Agreement online (whether by click-through, electronic signature, or other affirmative manifestation of assent), including any such acceptance by an individual using credentials provisioned to or by Licensee;
(c) Channel Partner Submission. A purchase order, order form, license activation request, or similar order document submitted to Licensor by an authorized reseller, distributor, managed service provider, or other Channel Partner of Licensor that identifies Licensee as the end-user licensee and that incorporates this Agreement by reference (each, a “Channel Order”), provided that the Channel Partner submitting such Channel Order has warranted to Licensor that (i) the Channel Partner has authority to bind Licensee to this Agreement, (ii) Licensee has been provided a copy of, or a current URL link to, this Agreement, and (iii) Licensee has accepted this Agreement;
(d) Customer Procurement Submission. A purchase order, requisition, or similar order document submitted to Licensor by Licensee or by Licensee’s procurement department, agent, affiliate, or authorized representative that references this Agreement, an applicable Order Form, or any Licensed Software covered by this Agreement; and
(e) Use of Licensed Software. Licensee’s installation, access, or use of the Licensed Software, regardless of how Licensee obtained the Licensed Software.
Each Formation Event independently constitutes Licensee’s acceptance of this Agreement, and any one Formation Event is sufficient to bind Licensee. The occurrence of multiple Formation Events with respect to the same transaction shall not give rise to multiple separate agreements; this Agreement governs the relationship between Licensor and Licensee in its entirety.
1.2 Authority and Affiliates. The individual or entity executing or accepting this Agreement on behalf of Licensee represents and warrants that such individual or entity has full authority to bind Licensee. Where any Formation Event is effected by Licensee’s affiliate, parent, subsidiary, agent, or authorized representative (each, a “Licensee Representative”), such Formation Event shall bind Licensee to the same extent as if Licensee had directly executed this Agreement. Licensee shall be liable for the acts and omissions of any Licensee Representative in connection with this Agreement and the Licensed Software.
1.3 Effective Date. This Agreement is effective as to each transaction on the earliest date of any Formation Event with respect to that transaction (the “Effective Date”). Where multiple Formation Events occur, the earliest such date governs.
1.4 No Conditions on Binding. Licensee’s obligations under this Agreement are not contingent upon (i) Licensee having read this Agreement, (ii) Licensee having received a physical copy of this Agreement, (iii) any particular individual at Licensee having executed this Agreement, or (iv) any internal procurement, approval, or authorization process of Licensee, provided that the Formation Event itself was effected by an individual with apparent or actual authority. Licensee bears responsibility for its own internal authorization processes.
2. DEFINITIONS
For purposes of this Agreement, the following capitalized terms have the meanings given below. Other capitalized terms are defined elsewhere in this Agreement.
“Aggregated Data” has the meaning given in Section 4.7.
“Channel Order” has the meaning given in Section 1.1(c).
“Channel Partner” means any reseller, distributor, managed service provider (“MSP”), or other authorized partner of Licensor that resells, distributes, or sublicenses the Licensed Software, or that provides services in connection with the Licensed Software, pursuant to a written agreement with Licensor.
“Confidential Information” includes all nonpublic information disclosed by the disclosing party to the receiving party, or the parties’ respective officers, directors, employees, agents, subsidiaries, business partners, assigns, or contractors, that is designated as confidential or proprietary, or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be considered confidential. At a minimum, Confidential Information shall include, without limitation: (i) the Licensed Software; (ii) information, documents, data, or materials of any type or kind, including developments, technical data, specifications, designs, ideas, product plans, test information, research and development, personal information, financial information, customer lists, business methods, operations, and marketing programs, in any format, relating to, arising out of, or otherwise connected to any assets, operations, property, technology, inventions, developments, ideas, trade secrets, techniques, expressive works, clients, or past, present, or future business of Licensor or any of its officers, directors, employees, licensees, or affiliates; and (iii) third-party information that Licensor is obligated to keep confidential. The foregoing shall not preclude a party from using or disclosing the same or similar information as the other’s Confidential Information to the extent that it can demonstrate through written documentation that such same or similar information (a) is generally known to the public on the Effective Date; (b) becomes generally known after the Effective Date other than as a result of an act or omission of the receiving party; (c) is rightfully known to the receiving party prior to its receipt thereof from the disclosing party; (d) is or was disclosed by the disclosing party generally without restriction on disclosure; (e) is received by the receiving party lawfully from a third party without breach of any obligation of trust or confidentiality; or (f) is independently developed by the receiving party without use of the disclosing party’s Confidential Information.
“Content” means files, code, agent packaging, or patches created by third parties, which do not constitute a part of the Licensed Software, and which may be delivered to Licensee.
“Documentation” means Licensor’s user guides and reference manuals for the Licensed Software in written or electronic format which Licensor makes available to its customers generally.
“Enterprise Use” means use of or access to the Licensed Software by Licensee, including Licensee’s approved employees, agents, consultants, and contractors (“Users”) engaged by Licensee solely for Licensee’s internal use, or where Licensee is an MSP, solely for the use of the MSP’s end user which has been approved by Licensor. Licensee shall be responsible for ensuring that its Users’ use of the Licensed Software complies with the terms of this Agreement.
“Evaluation Agreement” means Licensor’s separate, standalone JetPatch Software Evaluation Agreement available at https://jetpatch.com/evaluation-request/ (or such other URL as Licensor may designate from time to time), which governs evaluation use of the Licensed Software and which is expressly not part of this Agreement.
“Formation Event” has the meaning given in Section 1.1.
“Installed Software” means the Licensed Software made available to Licensee for download and installation on Licensee’s own infrastructure (including Licensee’s on-premises infrastructure, Licensee-controlled cloud infrastructure, or hybrid environments). The Installed Software operates entirely within Licensee’s infrastructure and does not transmit telemetry, usage data, or operational data to Licensor in the ordinary course of operation, except as expressly required for license validation, support requests initiated by Licensee, or as otherwise expressly agreed in writing by the parties.
“License Fees” means those amounts specified and set forth in Section 4 of this Agreement and the applicable Order Form.
“Licensed Software” means Licensor’s Installed Software and Updates supplied by Licensor (solely in object code form) as specified on the Order Form. For the avoidance of doubt, the Licensed Software is provided as on-premises or customer-deployed software and is not provided as a hosted, software-as-a-service, or cloud-hosted production offering by Licensor; any cloud-hosted access provided by Licensor for purposes of evaluation is governed exclusively by the Evaluation Agreement.
“Licensee Representative” has the meaning given in Section 1.2.
“Managed Service Provider” or “MSP” means a service provider licensing the Licensed Software for the purpose of providing managed services to MSP’s customers who have been approved by Licensor.
“New Releases” means any new versions of the Licensed Software provided to Licensee hereunder that offer substantial and new functionality over the prior Licensed Software version. New Releases may be provided for additional fees. If paid for by Licensee, New Releases will become part of the Licensed Software. Notwithstanding the foregoing, New Releases do not include any new or additional software products or modules marketed and priced separately by Licensor or which Licensor does not generally make available to its customers covered under its Maintenance and Support program without additional charge.
“Order Form” means Licensor’s form, including a quote, for placing orders hereunder, which form is entered into between Licensee and Licensor and identifies the Licensed Software to be ordered by Licensee, including the quantity and access information, as well as whether it is perpetual, subscription, or term. For the avoidance of doubt, Order Forms issued by Channel Partners (and not executed by Licensor) are governed by Section 10.3 and do not modify this Agreement.
“Product Specifications” means the technical and performance functions of the Licensed Software.
“Reseller Terms” means Licensor’s JetPatch Reseller Terms posted at https://jetpatch.com/reseller-terms/ (or such other URL as Licensor may designate from time to time), which govern the obligations of Channel Partners that are resellers.
“Services” means support and maintenance services with respect to the Licensed Software delivered by Licensor or its agent.
“Subscription License” or “Term License” means the Licensed Software is licensed only for the period of time set forth in the Order Form. The Subscription or Term License is in combination with the quantity set forth in the Order Form thereby limiting the use of the Licensed Software to such applicable license type for the period of time for the applicable subscription or term. The Subscription or Term License begins on the date the Licensed Software is delivered and continues for the subscription or term specified in the Order Form. The Subscription or Term License will terminate if Licensee fails to comply with any term or condition in this Agreement and Licensee fails to cure the term or condition within thirty (30) days. Licensed Software with a Subscription or Term License may contain a Licensed Software feature that limits Licensed Software usage in accordance with the license.
“Update” means a set of procedures, service packs, bug fixes, new programming code, or patches implemented by Licensor to correct problems in the Licensed Software, or to provide and improve functionality of the Licensed Software, including, but not limited to, any upgrades, modifications, enhancements, or fixes to the Licensed Software that Licensor makes generally available to its customers covered under its Maintenance and Support program without additional charge. Updates provided to Licensee will automatically become part of the Licensed Software.
3. LICENSE, DELIVERY, AND CHANNEL DISTRIBUTION
3.1 Grant of License. Subject to Licensee’s payment of all applicable fees, Licensor hereby grants Licensee a non-transferable, non-exclusive, non-sublicensable (provided that MSPs may sublicense to their customers which have been approved by Licensor), worldwide, limited (in accordance with the license limitations identified as a Term License or Subscription License on the applicable Order Form) license to use the Licensed Software (collectively, “Scope of Use”), solely for Licensee’s Enterprise Use, subject to the license type provided in the Order Form. Licensee may install and use or access the Licensed Software solely as permitted by the license type purchased, which license type is specified in the applicable Order Form and is described in this Agreement. Provided Licensee has paid the annual support and maintenance fees, the rights granted herein include, without any additional payment or increases to the fees paid herein, all Updates. New Releases may be subject to additional fees. In the event that Licensor issues any such Updates or New Releases and Licensee has paid the annual support and maintenance fees, Licensor will provide Licensee with such Updates under the same Scope of Use granted in this Section. Any terms and conditions contained within the Licensed Software shall be null and void. This Agreement confers no title or ownership and is not a sale of any rights in the Licensed Software. All rights not expressly granted to Licensee are reserved solely to Licensor and its licensors. Nothing herein should be construed as granting Licensee, by implication, estoppel, or otherwise, a license relating to the Licensed Software other than as expressly stated in this Agreement.
3.2 License Restrictions. Licensee shall not: (a) disassemble, reverse engineer, reverse compile, decode, decrypt, or in any way derive source code from the Licensed Software; (b) modify, translate, adapt, alter, or create derivative works from the Licensed Software; (c) copy, distribute, publicly display, transmit, sell, rent, lease, or otherwise exploit the Licensed Software; or (d) except as otherwise permitted to MSPs in accordance with Section 3.1, sublicense the Licensed Software to any third party. Licensee shall use the Licensed Software solely as permitted under this Agreement for its own internal Enterprise Use. Licensee shall not remove or alter any copyright or other proprietary notices affixed to or embedded therein, and shall include such in all copies made by Licensee. Licensee may not use the Licensed Software if this license has been terminated by Licensor.
3.3 Delivery. Licensor will deliver the Licensed Software, Updates, New Releases, and Documentation to Licensee by making the Licensed Software available for download and by providing such authorization codes, license keys, or other access mechanisms as Licensee requires to install and use the Licensed Software. Licensee may first need to provide Licensor with certain identifying information about Licensee’s system administrator and may be required to confirm availability or installation of the Licensed Software.
3.4 Versions of this Agreement.
(a) Posting and Effect. Licensor may from time to time post an updated version of this Agreement at https://jetpatch.com/license-services-agreement/ (or such other URL as Licensor may designate). Each posted version bears a version identifier and effective date.
(b) Version Governing Existing Licenses. The version of this Agreement in effect on the date Licensee accepted this Agreement (whether by execution of an Order Form, click-through acceptance, installation, or other manifestation of assent) shall continue to govern Licensee’s use of the Licensed Software for the entirety of the Term then in effect, notwithstanding any subsequently posted version. Subsequently posted versions shall not modify, supersede, or amend Licensee’s then-current version mid-Term.
(c) Application to Renewals and New Licenses. Upon any Renewal of Licensee’s Term, the version of this Agreement in effect on the renewal effective date shall apply in full to the renewed Term (each, a “Renewal Term”). Any new license granted to Licensee on or after a posted update shall be governed by the version then in effect. Licensee’s execution of a renewal Order Form, payment of renewal License Fees, or continued use of the Licensed Software after the start of a Renewal Term constitutes Licensee’s acceptance of the then-current version of this Agreement for that Renewal Term.
(d) Compliance with Applicable Laws Independent of Version. Notwithstanding subsection (b), each party’s obligations to comply with applicable laws (including without limitation those set forth in Sections 13 (Data Protection), 14 (Information Security), and 15 (Anti-Corruption)) apply as such laws are in effect from time to time, regardless of the version of this Agreement governing Licensee.
(e) Section 12.12 Inapplicable. Posting of an updated version under this Section 3.4 shall not be required to follow the formalities of Section 12.12 (Notices); the URL posting mechanism set forth in this Section 3.4 governs in lieu thereof.
(f) Optional Update Notifications. Licensee may opt in to receive courtesy email notifications when Licensor posts an updated version of this Agreement under subsection (a). To opt in, Licensee shall send an email to [email protected] that satisfies all of the following requirements: (1) the subject line shall read “LSA Update Notifications: Opt-In”; and (2) the body of the email shall identify (A) Licensee’s full legal name, (B) one or more email addresses to receive notifications, and (C) the name, title, and email address of an authorized contact at Licensee. An email that does not satisfy each of the foregoing requirements does not constitute a valid opt-in, and Licensor shall have no obligation to act on, respond to, or retain any non-conforming request. An opt-in is effective only upon Licensor’s written email confirmation that the opt-in has been accepted; Licensor may decline any opt-in request in its sole discretion. Once an opt-in has been confirmed, Licensor shall use commercially reasonable efforts to send courtesy email notifications to the designated address(es) when Licensor posts an updated version of this Agreement under subsection (a). Notwithstanding the foregoing, failure to send, deliver, or receive any such courtesy notification shall not (i) delay the effectiveness of any posted version, (ii) extend any timeline, (iii) alter the operation of subsections (b) or (c), or (iv) create any liability for Licensor. Licensee may unsubscribe at any time by emailing [email protected] with the subject line “LSA Update Notifications: Unsubscribe”. Licensee remains responsible for monitoring the URL identified in subsection (a) regardless of whether Licensee has opted in to courtesy notifications under this subsection (f).
3.5 Channel Partner Distribution. Licensee acknowledges that Licensor distributes the Licensed Software primarily through Channel Partners and that Licensee’s license may have been procured through a Channel Partner. The following provisions govern such transactions:
(a) Application of this Agreement. This Agreement is the governing document between Licensor and Licensee with respect to the Licensed Software, regardless of whether Licensee’s license was procured directly from Licensor or through a Channel Partner. Procurement through a Channel Partner does not alter, supplement, or override this Agreement, except as Licensor may expressly agree in writing pursuant to Section 10.3.
(b) Channel Partner Submission. Where a Channel Partner submits a Channel Order to Licensor that identifies Licensee as the end-user licensee, the Channel Partner is required by its agreement with Licensor to (i) provide Licensee with a copy of, or a current URL link to, this Agreement; (ii) obtain Licensee’s acceptance of this Agreement; and (iii) warrant to Licensor that the Channel Partner has authority to bind Licensee. Licensor’s acceptance of a Channel Order in reliance on these warranties is a Formation Event under Section 1.1(c) and binds Licensee to this Agreement.
(c) Channel Partner-Customer Commercial Relationship. Where Licensee procures the Licensed Software through a Channel Partner, Licensee’s commercial relationship with the Channel Partner (including without limitation pricing, payment terms, billing, invoicing, delivery, implementation services provided by the Channel Partner, and other commercial matters) is governed by Licensee’s separate agreement with the Channel Partner and is not governed by this Agreement. Licensor is not a party to and has no responsibility for such Channel Partner—Customer agreements.
(d) Allocation of Liability for Channel Partner Conduct. Notwithstanding anything in this Agreement to the contrary, Licensor shall have no liability to Licensee for any commercial dispute between Licensee and a Channel Partner, including without limitation disputes regarding fees paid by Licensee to the Channel Partner, billing or invoicing matters, the Channel Partner’s failure to deliver implementation or related services, the Channel Partner’s insolvency or bankruptcy, or any other commercial matter solely between Licensee and the Channel Partner. Licensee’s remedies for any such commercial dispute shall lie exclusively against the Channel Partner. Licensee’s remedies against Licensor with respect to the Licensed Software, support and maintenance services, and license rights are governed by this Agreement and remain available regardless of the Channel Partner’s acts or omissions, subject to Section 7.
(e) Customer Right to Engage Licensor Directly. Notwithstanding any provision of any agreement between Licensee and a Channel Partner, Licensee may, at any time, request to engage with Licensor directly with respect to the Licensed Software (rather than through Licensee’s Channel Partner) by providing written notice to Licensor at [email protected]. Licensor will accommodate such requests in good faith subject to applicable channel-partner notification and transition requirements set forth in Licensor’s agreements with the relevant Channel Partner.
3.6 Evaluation Use. Use of the Licensed Software for evaluation purposes is governed exclusively by the Evaluation Agreement, and not by this Agreement. The Evaluation Agreement is a complete and free-standing agreement that governs all aspects of evaluation use; this Agreement does not apply to and does not govern any evaluation period. No provision of the Evaluation Agreement is incorporated into this Agreement, and no provision of this Agreement is incorporated into the Evaluation Agreement, except that each agreement may reference the other for context. Use of the Licensed Software in production, or otherwise outside the scope of the Evaluation Agreement, requires execution of an Order Form under this Agreement. For the avoidance of doubt, no use of the Licensed Software during an evaluation period shall constitute acceptance of this Agreement, and no license is granted under this Agreement until and unless an Order Form is executed under this Agreement.
3.7 Third Party Products and Third Party Content. Licensee acknowledges that the Licensed Software may contain or be accompanied by certain third-party software products (“Third Party Products”), including those detailed either in a “NOTICES” file (or similar file) installed in the Licensed Software’s installation directory, or in such documentation separately conveyed to Licensee. Licensee further acknowledges that Licensor may provide or offer Licensee access to use Third Party Content. To the extent so stipulated by the license that governs the use of a Third Party Product or Third Party Content (the “Third Party EULA”), such Third Party Product is subject to its own Third Party EULA, not this Agreement. If, and to the extent, a Third Party EULA requires that this Agreement effectively impose, or incorporate by reference, certain disclaimers, provisions, prohibitions, or restrictions, then such disclaimers, provisions, prohibitions, or restrictions shall be deemed to be imposed, or incorporated by reference into this Agreement, as required (and Licensee shall thereby be deemed to have reviewed and agreed to said terms and their according imposition and incorporation), and shall (solely if necessary) supersede any conflicting provision of this Agreement, solely with respect to the corresponding Third Party Product which is governed by such Third Party EULA. If, and to the extent, a Third Party EULA requires that the source code of the Third Party Product it governs be made available to Licensee, and such source code was not delivered to Licensee with the product, Licensor hereby extends to Licensee a written offer, valid for the period specified in such Third Party EULA, to obtain a copy of the source code of the Third Party Product from Licensor. To take up this offer, or to request information on a Third Party Product, contact Licensor through one of the channels indicated on Licensor’s website. If Licensee does not so choose to take up such offer, Licensee shall be deemed to have received all such information as well as a copy of said source code, as required.
4. LICENSE FEES, AGGREGATED DATA, AND PAYMENT
4.1 Fees. All License Fees and other amounts due to Licensor shall be payable in full in U.S. dollars within thirty (30) days from receipt of invoice, unless otherwise specified in the Order Form. Licensee shall have no right of offset or withholding under this Agreement.
4.2 Late Payment Consequences.
(a) Interest on Late Payments. Licensor has the right to charge Licensee interest on all License Fees, Holdover Damages, accelerated payments, and other amounts due to Licensor after the date such amounts are due and payable according to Licensor’s Order Form or invoice. Such amounts shall bear interest at the lesser of one and one half percent (1.5%) per month (eighteen percent (18%) annualized) or the maximum rate of interest allowable by law, accruing daily from the date due until paid in full. Interest shall continue to accrue notwithstanding any termination, expiration, or other cessation of this Agreement, and shall be due and payable upon Licensor’s invoice.
(b) Late Payment Fee. In addition to interest under subsection (a), each invoice that remains unpaid for more than thirty (30) days after its due date shall incur a one-time late payment fee equal to the greater of (i) one thousand U.S. dollars (US$1,000), or (ii) two percent (2%) of the unpaid amount, whichever is greater. The late payment fee is intended to compensate Licensor for administrative and collection costs not otherwise recoverable as actual damages.
(c) Collection Costs and Attorneys’ Fees. Licensee shall reimburse Licensor for all costs and expenses (including without limitation attorneys’ fees, collection-agency fees, court costs, expert witness fees, and litigation expenses) incurred by Licensor in collecting any amount owed by Licensee under this Agreement that is not paid when due, regardless of whether litigation is commenced. Such costs and expenses shall accrue from the date Licensor first incurs them and shall be due and payable upon Licensor’s invoice.
(d) Suspension of Support and Updates for Non-Payment. Without limiting any other remedy, Licensor may suspend the provision of support and maintenance services, Updates, New Releases, and any related services upon Licensee’s failure to pay any amount due that has not been cured within ten (10) days of Licensor’s written notice of non-payment. Such suspension shall not constitute termination of this Agreement and shall not relieve Licensee of any payment obligations or other obligations hereunder. Licensor shall lift such suspension upon Licensee’s payment of all overdue amounts plus interest, late fees, and collection costs accrued under subsections (a) through (c). Any suspension under this subsection (d) shall not extend the Term of this Agreement or any Order Form, and Licensee shall not be entitled to any extension of the subscription period, refund, credit, or other remedy in respect of any period during which support and maintenance services, Updates, New Releases, or related services were suspended under this subsection (d). The Term shall continue to run, and shall expire on its scheduled expiration date, regardless of any suspension period.
(e) Suspension of Support Upon Term Expiration Without Renewal; Imminent Renewal Grace Period.
(i) Automatic Suspension Upon Term Expiration. Without limiting any other remedy and without any requirement of prior notice, Licensor may suspend the provision of support and maintenance services, Updates, New Releases, and any related services effective immediately as of the date of expiration of the Term where Licensee has not, prior to the expiration of the Term, both (1) executed a renewal Order Form (or written renewal addendum) that has been countersigned and accepted in writing by an authorized representative of Licensor (as defined in Section 10.2(d)), with such acceptance delivered by email from Licensor to either the email address from which the renewal Order Form was issued by or on behalf of Licensee, or the email address that Licensee has separately identified as a designated address under Section 4.3; and (2) paid (or initiated payment of) the applicable renewal License Fees in accordance with such Licensor-accepted renewal Order Form. Licensor’s email transmission of acceptance is governed by Section 4.3 (Email Delivery Risk and Notification Addresses).
(ii) Imminent Renewal Grace Period. Licensor may, in its sole discretion and on a case-by-case basis, extend the provision of support and maintenance services, Updates, New Releases, and any related services for a limited grace period not to exceed twenty (20) calendar days following the expiration of the Term (the “Imminent Renewal Grace Period”) where Licensor receives, prior to the expiration of the Term, a written commitment from Licensee, signed by either (1) an officer of Licensee with apparent authority to make such commitment, or (2) an authorized member of Licensee’s procurement department who has been identified to Licensor in writing (delivered to [email protected]) as having authority to issue Order Forms or renewal commitments on Licensee’s behalf, confirming: (A) Licensee’s intention to execute a renewal Order Form, (B) the agreed-upon renewal Term and License Fees, and (C) the date by which Licensee commits to deliver the executed renewal Order Form and payment to Licensor (the “Renewal Commitment Date”), which date shall not be later than twenty (20) calendar days following the expiration of the Term. Licensor’s grant of any Imminent Renewal Grace Period shall be effective only upon Licensor’s written acknowledgment delivered by email to Licensee specifying the duration of the grace period. Licensor’s email transmission of acknowledgment is governed by Section 4.3.
(iii) Effect of Failure to Cure by Renewal Commitment Date. Licensee’s failure to deliver an executed renewal Order Form (countersigned and accepted in writing by Licensor) and full payment of the applicable renewal License Fees by the Renewal Commitment Date shall: (A) immediately terminate any Imminent Renewal Grace Period, with services suspended without further notice; (B) trigger Licensee’s obligations under Section 9.2(e), including the obligation to deliver a Certification of Cessation, with the original Term expiration date deemed the date of termination for purposes of all timelines, calculations, and obligations under Section 9.2(e); and (C) trigger Licensee’s liability for Holdover Damages under Section 9.2(e)(iv) for the period from the original Term expiration date through the date of full Certification of Cessation. For the avoidance of doubt, no oral commitment, course of dealing, prior practice, sales communication, or other informal indication of intent shall constitute a written commitment for purposes of this subsection (e).
(iv) No Term Extension. Any Imminent Renewal Grace Period and any continuation of services thereunder shall not extend the Term of this Agreement, the Term of any Order Form, or any subscription period, and Licensee shall not be entitled to any extension, refund, credit, or other remedy in respect of any period during which services were suspended or were continued solely as a grace accommodation under this subsection (e).
(f) Cross-Default. Any default by Licensee in payment of any amount due under any Order Form, invoice, Holdover Damages assessment, or other obligation under this Agreement (a “Payment Default”) shall constitute a default under all Order Forms and all other payment obligations of Licensee under this Agreement, and Licensor may exercise any or all remedies available under this Agreement with respect to any or all of Licensee’s Order Forms and obligations, including without limitation the acceleration rights under Section 9.2(d), the termination rights under Section 9.2, the suspension rights under Sections 4.2(d) and 4.2(e), and the right to refuse to enter into new Order Forms or process new transactions until the Payment Default is fully cured. Where any Licensee Affiliate (as defined in Section 10.3(e)) has its own Order Form with Licensor, a Payment Default by Licensee shall also constitute a default by such Licensee Affiliate solely with respect to amounts owed by Licensee that the Licensee Affiliate has guaranteed or for which the Licensee Affiliate is jointly liable, but shall not otherwise affect such Licensee Affiliate’s separate Order Form unless the Payment Default exceeds ninety (90) days, in which case Licensor may, at its option, treat such Payment Default as a default by all Licensee Affiliates with Order Forms with Licensor.
(g) Application of Payments. Licensor may, at its option, apply any payment received from Licensee to any outstanding amounts owed by Licensee in any order Licensor determines, regardless of any designation by Licensee or any payment instructions accompanying the payment.
(h) Time of the Essence. Time is of the essence with respect to all payment obligations of Licensee under this Agreement and any Order Form. The parties acknowledge that timely payment is a material term of this Agreement, and Licensor’s pricing and contractual commitments were made in reliance on Licensee’s commitment to pay on time. Licensee shall not use any actual or threatened payment delay as a means of obtaining commercial concessions, and any such use shall constitute a material breach of this Agreement.
4.3 Email Delivery Risk and Notification Addresses. This Section 4.3 governs the email-based notification, acceptance, and acknowledgment mechanisms that operate under this Agreement, including without limitation acceptance of renewal Order Forms under Section 4.2(e), acknowledgment of Imminent Renewal Grace Periods under Section 4.2(e)(ii), acknowledgment of Certification of Cessation extensions under Section 9.2(e)(ii)(D) (collectively, “Email-Based Notifications”).
(a) Designated Addresses. Each party shall maintain, and promptly update, a current and operational email address for receipt of Email-Based Notifications. Licensee may, at any time, identify to Licensor in writing (delivered to [email protected]) one or more email addresses as Licensee’s designated addresses for receipt of Email-Based Notifications. In the absence of a separately designated address, the email address from which the most recent Order Form was issued by or on behalf of Licensee shall serve as Licensee’s address for receipt of acceptances of that Order Form, and the most recent email address Licensee has otherwise provided to Licensor shall serve for other Email-Based Notifications.
(b) Effective Transmission. A party’s transmission of an Email-Based Notification to a designated address (or, in the absence of a separately designated address, to the address otherwise applicable under subsection (a)) shall constitute effective transmission regardless of whether such email is received, opened, or read by the addressee, and regardless of whether such email is bounced, returned, rejected, filtered, blocked, quarantined, or otherwise undelivered (whether due to incorrect address, mailbox capacity, technical failure, employee turnover, spam filtering, security blocking, organizational policy, or any other cause).
(c) Risk Allocation. Each party bears all risk of providing inaccurate, outdated, or non-operational email addresses, and of failing to receive any Email-Based Notification due to causes within or beyond such party’s control. No failure to receive an Email-Based Notification shall extend any timeline, alter the effectiveness of any acceptance, acknowledgment, or notice, or relieve the receiving party of any obligation under this Agreement. It is each party’s sole responsibility to provide and maintain working email addresses for the purposes of receiving Email-Based Notifications.
(d) Address Updates. Address updates take effect three (3) business days after the updating party’s written notice (delivered to [email protected] in the case of updates by Licensee, or to the address Licensor designates from time to time in the case of updates by Licensor). Email-Based Notifications transmitted prior to the effective date of an address update remain effective notwithstanding such update.
4.4 Taxes. Licensor’s pricing excludes all applicable federal, state, and local sales, use, excise, or other taxes or assessments, however designated or levied, relating to this Agreement. Licensee shall be responsible for, and shall promptly pay or reimburse Licensor for, the payment of all sales, use, excise, value-added, or similar taxes, assessments, or duties (or other similar charges) imposed by any governmental agency (including any interest and penalty imposed thereon as a result of any act or omission of Licensor that is in accordance with the direction or request of Licensee) that are based on or with respect to any Licensed Software, Services, or goods provided by Licensor to Licensee, or the amounts payable to Licensor therefor. Licensor shall be responsible for taxes based on Licensor’s net income.
4.5 Audit Rights. For the purpose of verifying compliance with this Agreement and the licenses granted herein, during the term of this Agreement and for one (1) year thereafter, Licensor (and Licensor’s authorized representatives) shall have the right, no more frequently than once per twelve (12)-month period (except where Licensor has reasonable cause to believe that Licensee has materially breached this Agreement, in which case more frequent audits may be conducted), upon thirty (30) days’ prior written notice and during normal business hours, to audit and inspect Licensee’s books and records relevant to its use and access to the Licensed Software, and to observe the use made of the Licensed Software and the manner in which it accessed the Licensed Software. Audits shall be conducted in a manner that minimizes disruption to Licensee’s business and shall be subject to Licensee’s reasonable security and confidentiality requirements. Licensor’s representatives shall execute Licensee’s reasonable confidentiality agreements before access to confidential records. If Licensor’s records pursuant to this Section or otherwise indicate that more Users are accessing the Licensed Software than Licensee has paid for, Licensee shall pay Licensor the shortfall in fees retrospectively to the date of the applicable increase. If such underpayment exceeds five percent (5%) of the fees due during the relevant period, Licensee shall reimburse Licensor for Licensor’s reasonable costs associated with such audit or inspection.
4.6 License Validation Data. The Licensed Software does not transmit telemetry, usage data, or operational data to Licensor in the ordinary course of operation. The Licensed Software may, however, transmit limited data to Licensor solely for the purpose of license validation (including license key verification and license entitlement checks). Such license validation data is limited to information reasonably necessary to verify that Licensee’s use of the Licensed Software is within the scope of the license purchased and does not include personal data of Licensee’s end users, content data managed by the Licensed Software, or operational data of Licensee’s environment.
4.7 Aggregated Data; Voluntary Data Provision. Licensor may from time to time request that Licensee voluntarily provide anonymized usage data, telemetry, configuration data, or performance data derived from Licensee’s use of the Licensed Software, for purposes of product improvement, benchmarking, industry analysis, or similar purposes (collectively, “Aggregated Data”). Any such request shall be made in writing and shall describe the categories of data requested, the intended purpose, and the duration of the data provision. Licensee may, in its sole discretion, accept or decline any such request, and Licensee’s decision shall not affect Licensee’s rights under this Agreement. Where Licensee accepts a request and provides Aggregated Data to Licensor, (i) such Aggregated Data shall be anonymized such that no individually identifiable information of Licensee or Licensee’s end users can be derived from it, (ii) Licensor may use and disclose such Aggregated Data for the purposes specified in the request, and (iii) Licensee retains no ownership of or other rights in such Aggregated Data once provided. For the avoidance of doubt, no provision of this Agreement shall be construed to authorize Licensor to collect data from the Licensed Software absent Licensee’s express written consent under this Section 4.7, except for license validation data as described in Section 4.6 and except as expressly required for support requests initiated by Licensee.
4.8 Support Ticket Data Carve-Out. Where Licensee initiates a support request and voluntarily provides logs, configuration files, screenshots, or other diagnostic data to Licensor in connection with such request, Licensor may use such data solely for purposes of resolving the support request and may retain such data only for so long as reasonably necessary for that purpose. Such data is not Aggregated Data under Section 4.7 and is governed by the confidentiality obligations of Section 6.
5. LIMITED WARRANTY
5.1 Limited Warranty. DURING THE TERM OF THIS AGREEMENT, LICENSOR WARRANTS THAT THE LICENSED SOFTWARE, IN UNMODIFIED FORM AND WHEN USED AS AUTHORIZED BY THIS AGREEMENT, WILL SUBSTANTIALLY CONFORM TO THE PRODUCT SPECIFICATIONS. LICENSOR MAKES NO OTHER WARRANTIES OR REPRESENTATIONS RELATING TO THE LICENSED SOFTWARE, THE SERVICES, OR ITS PERFORMANCE OR WITH RESPECT TO THE DOCUMENTATION. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ARE EXPRESSLY DISCLAIMED AND EXCLUDED.
5.2 Licensor’s Warranty Obligations; Limitations of Limited Warranty. In the event of breach of the Limited Warranty provided in Section 5.1 of this Agreement, Licensor’s entire liability and Licensee’s exclusive remedy will be, at Licensor’s sole discretion, to either: (i) repair, replace, or provide a reasonable workaround for the defective or non-conforming portion of the Licensed Software within thirty (30) days after receiving written notice of the breach of the warranty which describes in detail the specific nature of the defect or non-conformity; or (ii) refund the License Fees paid by Licensee for such Licensed Software on a pro rata basis (after deducting amounts paid for actual use of the Licensed Software by Licensee). The Limited Warranty provided in Section 5.1 of this Agreement does not apply to problems resulting from: (a) improper installation of the Licensed Software by Licensee or any other party other than Licensor, or the installation of the Licensed Software on improper hardware; (b) modification of the Licensed Software not undertaken or performed by Licensor; (c) malfunctions in any computer hardware or software or systems files not provided by Licensor; (d) accident of Licensee or at Licensee’s premises; (e) negligence of Licensee; (f) misuse of the Licensed Software by Licensee; or (g) use of the Licensed Software with data of any entity other than Licensee.
5.3 Services. Licensor covenants that any Services performed for Licensee under this Agreement shall be performed in a professional manner with at least reasonable care.
5.4 Disclaimer. LICENSOR DOES NOT WARRANT (i) THAT THE LICENSED SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS; (ii) THAT OPERATION OF THE LICENSED SOFTWARE WILL BE UNINTERRUPTED; (iii) THAT THE LICENSED SOFTWARE IS ISSUE FREE; (iv) THAT ALL DEFECTS IN THE LICENSED SOFTWARE WILL BE CORRECTED; OR (v) ANY CHANGE OR MODIFICATION OF THE LICENSED SOFTWARE MADE BY LICENSEE; PROVIDED, HOWEVER, ANY CHANGE OR MODIFICATION PROPERLY MADE BY LICENSEE IN ACCORDANCE WITH INSTRUCTIONS CONTAINED IN THE DOCUMENTATION FOR THE LICENSED SOFTWARE SHALL NOT VOID THE WARRANTY PROVIDED BY LICENSOR HEREIN. LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE CONTENT.
5.5 Support and Maintenance. The terms of Licensor’s support and maintenance program, including business hours, response and resolution targets, and issue classification, are set forth in Exhibit A (Support and Maintenance), which is incorporated into this Agreement by reference. Licensor shall provide such support and maintenance services in accordance with Exhibit A, conditioned on Licensee’s payment of the applicable annual support and maintenance fees.
6. CONFIDENTIALITY
6.1 Obligation to Protect Confidential Information. The receiving party shall not (i) disclose any Confidential Information to any third party; (ii) make any use of Confidential Information except to perform its obligations or exercise its rights under this Agreement or any applicable Order Form; or (iii) make Confidential Information available to any of its employees or consultants except those that have signed an agreement containing disclosure and use provisions similar to those set forth herein and have a “need to know” in order to carry out the purpose set forth above. The receiving party shall be held to the same standard of care as it applies to its own information and materials of a similar nature, and no less than reasonable care. A party receiving Confidential Information of the other shall protect it as such for three (3) years after the termination of this Agreement, except for Confidential Information that constitutes a trade secret, which shall remain confidential indefinitely. A party does not violate its obligations under this Section if it provides Confidential Information in response to a court order or other governmental body or is otherwise required to do so by operation of law; provided, however, that the party required to disclose Confidential Information of the other party shall notify the other party as soon as possible after learning of the disclosure obligation and shall cooperate with the other party, at the other party’s expense, in seeking to limit or prevent such disclosure.
6.2 Public Statements. Except as required by law as relates to public and private offerings of securities and compliance with securities law, neither party shall make any press release or other public announcements or disclosures regarding the existence or contents of this Agreement without the express written consent of the other party. If Licensor is required to disclose this Agreement to the government, then before making such disclosure, it shall provide a draft of the proposed disclosure to Licensee with an opinion of counsel as to the need to make the disclosure.
7. INDEMNITY
7.1 Licensor Indemnity. Licensor shall defend, indemnify, and hold Licensee, and Licensee’s directors, employees, agents, consultants, contractors, vendors, and third-party business partners harmless against any third-party liabilities, claims, demands, suits (and any costs, reasonable attorney fees, expert fees, judgments, and settlement amounts associated therewith) that the use or disposition of the Licensed Software in accordance with this Agreement and the Documentation misappropriates a trade secret protected under the laws of a jurisdiction where Licensee is authorized under this Agreement to use the Licensed Software, or directly infringes a registered patent, copyright, registered trademark, or registered design right valid in any such jurisdiction. For clarity, this Section 7.1 does not cover (i) unregistered marks, common-law marks, trade dress, publicity rights, or moral rights; (ii) IP rights in jurisdictions where Licensee is not authorized under this Agreement to use the Licensed Software; or (iii) so-called “sui generis” rights or “database rights” arising under non-U.S. or non-EU law. Licensee will provide Licensor with (i) prompt notice in writing of such claim (but late notice shall not void Licensor’s obligations in this Section unless the lateness itself prejudiced Licensor’s ability to fulfill its obligations); (ii) sole control over the defense and settlement thereof; and (iii) reasonable cooperation from Licensee, as applicable, in response to Licensor’s reasonable request for assistance. When settling or compromising any claim, Licensor shall not, without Licensee’s written approval, make any admission of facts that expose Licensee to the imposition of punitive damages or other claims that are not covered by this indemnification. Should the Licensed Software become, or in Licensor’s opinion is likely to become, the subject of such a claim, Licensor shall, at its option and expense, (a) procure for Licensee the right to continue using the Licensed Software or Services, as applicable, in accordance with this Agreement; (b) replace or modify the Licensed Software or Services so that it becomes non-infringing but with substantially equivalent functionality and performance; or (c) if neither (a) nor (b) are reasonably available, accept return of the Licensed Software or cease providing the infringing Services and refund to Licensee the price Licensee paid to Licensor therefor, for perpetual licenses on a pro rata basis as depreciated over a three (3) year straight line basis from the date of delivery and for subscription or term for the then-current term of the license. Licensor shall have no liability for alleged infringement based on (1) use for a purpose or in a manner for which the Licensed Software or Services were not designed; (2) use of any older version of the Licensed Software when use of a newer version made available by Licensor to Licensee would have avoided the infringement; or (3) any modification to the Licensed Software made without Licensor’s written approval. THIS SECTION 7.1 STATES THE ENTIRE LIABILITY OF LICENSOR, AND LICENSEE’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
7.2 Licensee Indemnity. Licensee shall be solely responsible for, and shall indemnify, defend, and hold Licensor free and harmless from all damages, liabilities, charges, and expenses (including reasonable attorneys’ fees) from all claims, lawsuits, or other proceedings arising out of or relating to: (i) Licensee’s use of the Licensed Software in a manner not permitted by this Agreement, not permitted by Licensor, or not in conformance with Licensor’s written requirements and the Documentation and Product Specifications; (ii) the acts or omissions of Licensee, its employees, and agents and all persons or entities who have access through Licensee to the Licensed Software, in each case in connection with breach of this Agreement; or (iii) infringement of any right resulting from the use of the Licensed Software with other software or materials not licensed to Licensee by or not approved by Licensor.
8. LIMITATION ON LIABILITY
8.1 Cap on Direct Damages.
(a) General Cap. TO THE EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS PROVIDED IN SUBSECTIONS (b) AND (c) BELOW, IN NO EVENT SHALL LICENSOR’S, NOR ANY OF ITS LICENSORS’, AFFILIATES’, EMPLOYEES’, OR CONSULTANTS’ AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT EXCEED THE LICENSE FEES PAID BY LICENSEE FOR THE LICENSED SOFTWARE IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE FIRST OF ANY SUCH CLAIM (THE “GENERAL CAP”). LICENSOR DISCLAIMS ALL LIABILITY ARISING FROM THE DEPLOYMENT, DELIVERY, OR USE OF ANY CONTENT INSTALLED OR DELIVERED TO LICENSEE. WHERE LICENSOR LICENSES THE LICENSED SOFTWARE TO AN MSP, LICENSOR SHALL HAVE NO LIABILITY TO THE MSP’S CUSTOMERS TO WHICH THE MSP SUBLICENSES THE LICENSED SOFTWARE.
(b) Data Breach Supercap. Subject to subsections (d), (e), and (f) below, Licensor’s aggregate liability for all claims arising from a Security Incident (as defined in Section 14.4(a)) where Licensor’s own systems, personnel, or infrastructure were the proximate cause of the breach shall not exceed the greater of: (i) one (1) times the License Fees paid by Licensee in the twelve (12) months immediately preceding the Security Incident; or (ii) one hundred thousand U.S. dollars (US$100,000) (the “Data Breach Supercap”). The Data Breach Supercap is in lieu of, not in addition to, the General Cap with respect to claims falling within its scope.
(c) Sub-Processor Breach Pass-Through. Notwithstanding any other provision of this Agreement, except where Licensee is established in the European Economic Area, the United Kingdom, or another jurisdiction whose mandatory data protection laws (including without limitation Article 28(4) of the EU General Data Protection Regulation and the equivalent provision of the UK GDPR) preclude such limitation, where a Security Incident is caused by a Sub-Processor (as defined in Section 13.4) of Licensor, Licensor shall have no liability to Licensee for such Security Incident or any resulting damages, except where Licensee proves that Licensor was grossly negligent in selecting, contracting with, or managing such Sub-Processor. Licensee’s exclusive remedies for Sub-Processor-caused Security Incidents shall lie against the Sub-Processor directly. Licensor’s cooperation obligations under this subsection (c) are conditioned on Licensee first satisfying the requirements of subsection (e) (Pre-Litigation Cooperation Period), including delivery of written notice meeting the pleading specificity requirements of subsection (d) and completion of the sixty (60)-day cooperation period thereunder. Following Licensee’s satisfaction of those conditions, Licensor shall, upon Licensee’s reasonable written request: (i) identify the Sub-Processor whose systems were involved in the Security Incident; (ii) provide Licensee with reasonable assistance in pursuing the Sub-Processor (including providing relevant correspondence, contractual documents, and contact information); and (iii) not unreasonably interfere with Licensee’s pursuit of remedies against the Sub-Processor. For purposes of this subsection (c), Licensor’s selection of a Sub-Processor that holds a current SOC 2 Type II report, ISO/IEC 27001 certification, or equivalent industry-recognized security certification or attestation at the time of selection shall not, by itself, constitute gross negligence in selection.
(d) Burden of Proof and Pleading Specificity. In any claim by Licensee asserting that the Data Breach Supercap or the Sub-Processor Breach Pass-Through applies to a particular Security Incident, Licensee bears the burden of proving by clear and convincing evidence: (i) the specific Security Incident event, identifying the date, scope, and nature of the breach; (ii) the specific Licensor failure or omission that caused the Security Incident (or, in the case of subsection (c), the specific gross negligence in Licensor’s selection or management of the Sub-Processor); (iii) the specific Licensee data, Confidential Information, or personal data that was affected; and (iv) the specific harm suffered by Licensee that is causally attributable to the Security Incident. Generic allegations, conclusory statements, or claims unsupported by particularized facts shall not satisfy this burden, and any claim failing to meet these pleading requirements shall be subject to dismissal at the threshold.
(e) Pre-Litigation Cooperation Period. Prior to commencing any action, claim, or proceeding against Licensor arising from a Security Incident, Licensee shall: (i) provide Licensor with written notice (delivered to [email protected]) describing the alleged Security Incident and the specific facts identified in subsection (d) above; (ii) participate in good faith with Licensor in a sixty (60)-day cooperation period during which Licensor shall investigate the alleged Security Incident and may propose remediation; and (iii) commence such action, claim, or proceeding only if Licensor’s investigation confirms the Security Incident occurred and Licensor’s proposed remediation is unsatisfactory to Licensee. Any action commenced before completion of this Pre-Litigation Cooperation Period shall be subject to dismissal as premature, except where Licensee establishes that immediate injunctive relief is necessary to prevent imminent and irreparable harm.
(f) Loser-Pays for Unsuccessful Security Incident Claims. Where Licensee commences any action, claim, or proceeding against Licensor under subsection (b) or (c) and Licensor prevails on such claim (whether by judgment, dismissal, or summary disposition), Licensee shall reimburse Licensor for all reasonable attorneys’ fees, expert witness fees, court costs, and other litigation expenses incurred by Licensor in defending such claim. The parties acknowledge that this loser-pays provision is reasonable in light of the difficulty of distinguishing meritorious from unmeritorious Security Incident claims and the disproportionate cost to Licensor of defending unmeritorious claims, and that this provision discourages tactical or speculative filings while preserving Licensee’s ability to pursue genuine claims.
(g) Carve-Outs to All Caps. The General Cap, the Data Breach Supercap, and the Sub-Processor Breach Pass-Through shall not apply to, and shall not limit, the following:
(i) Licensee’s Payment Obligations. Amounts owed by Licensee to Licensor under this Agreement, including without limitation License Fees, Holdover Damages, accelerated installments, interest, late fees, and collection costs, are not subject to any cap and shall be paid in full;
(ii) License Restrictions. Licensee’s breach of the license restrictions set forth in Section 3.2;
(iii) Confidentiality Breaches. Either party’s breach of Section 6 (Confidentiality), provided that the breaching party’s aggregate liability for any such breach shall not exceed two (2) times the License Fees paid by Licensee in the twelve (12) months immediately preceding the first event giving rise to such breach (the “Confidentiality Cap”); provided further that this cap shall not apply to breaches caused by the breaching party’s intentional, willful, or grossly negligent conduct;
(iv) IP Indemnity. Licensor’s indemnity obligations under Section 7.1 (Licensor Indemnity), the scope of which is governed exclusively by Section 7.1, provided that Licensor’s aggregate liability under Section 7.1 (including all defense costs, settlement amounts, and damages) shall not exceed the greater of (A) three (3) times the License Fees paid by Licensee in the twelve (12) months immediately preceding the first event giving rise to the indemnity claim, or (B) one million U.S. dollars (US$1,000,000) (the “IP Indemnity Cap”); provided further that the IP Indemnity Cap shall not apply to indemnity obligations triggered by Licensor’s intentional, willful, or grossly negligent conduct, or by fraud;
(v) Licensee Indemnity. Licensee’s indemnity obligations under Section 7.2 (Licensee Indemnity);
(vi) Anti-Corruption. Either party’s breach of Section 15 (Anti-Corruption);
(vii) Export Compliance. Either party’s breach of Section 12.2 (Export Compliance and Sanctions);
(viii) Gross Negligence and Willful Misconduct. Damages caused by either party’s gross negligence or willful misconduct;
(ix) Fraud. Damages caused by either party’s fraud or fraudulent misrepresentation; and
(x) Mandatory Law. Any liability that may not be limited as a matter of mandatory applicable law (including without limitation, where applicable, liability for death or personal injury caused by negligence).
(h) Master Cap. Notwithstanding the General Cap (subsection (a)), the Data Breach Supercap (subsection (b)), the Confidentiality Cap (subsection (g)(iii)), and the IP Indemnity Cap (subsection (g)(iv)), Licensor’s aggregate liability across all such categories combined, and across all claims arising out of or relating to this Agreement, shall not exceed the greater of (A) three (3) times the License Fees paid by Licensee in the twelve (12) months immediately preceding the first event giving rise to claims, or (B) one million U.S. dollars (US$1,000,000) (the “Master Cap”). The Master Cap shall not apply to, and shall not limit, the carve-outs set forth in subsection (g)(i) (Licensee’s Payment Obligations), (g)(viii) (Gross Negligence and Willful Misconduct), (g)(ix) (Fraud), and (g)(x) (Mandatory Law).
8.2 No Indirect Damages. NEITHER LICENSOR NOR ANY OF ITS LICENSORS, AFFILIATES, EMPLOYEES, OR CONSULTANTS SHALL BE LIABLE TO LICENSEE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES (EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE LICENSED SOFTWARE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR SYSTEMS OR CONTENT; OR (iv) THE DELIVERY OF CONTENT TO LICENSEE THROUGH THE LICENSED SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE.
8.3 Limitation Period. Notwithstanding any longer statute of limitations that might otherwise apply, no action, claim, or proceeding (regardless of form, whether sounding in contract, tort, statute, equity, or otherwise) arising out of or relating to this Agreement, the Licensed Software, or the Services may be brought by Licensee against Licensor more than two (2) years after the cause of action has accrued. The parties acknowledge and agree that this limitation period is reasonable in light of the nature of the Licensed Software, the Services, and the parties’ commercial relationship, and reflects a knowing, voluntary, and bargained-for allocation of risk. This Section 8.3 does not apply to claims that may not be limited as a matter of mandatory applicable law (in which case the shortest period that may lawfully be applied shall govern), or to claims by Licensor for non-payment, infringement of intellectual property rights, breach of confidentiality, or breach of the license restrictions set forth in Section 3.2.
9. TERM AND TERMINATION
9.1 Term.
(a) Term Defined by Order Form. The term of this Agreement (the “Term”) shall be the period specified in the applicable Order Form executed by Licensee, including any initial term, prepayment period, or commitment period set forth therein. Where an Order Form specifies a multi-year Term (whether prepaid in full, prepaid annually in installments, or otherwise structured), this Agreement and the license granted hereunder shall remain in full force and effect for the entire Term so specified, subject to (i) Licensee’s payment of all amounts due as and when required under the Order Form, and (ii) the rights of either party to terminate this Agreement as set forth in Section 9.2.
(b) Default Term Where Order Form Silent. Where an Order Form does not specify a Term, the Term shall be one (1) year from the Effective Date.
(c) Renewal Requires Payment and New Order Form. Renewal of the license beyond the Term specified in the Order Form (or beyond the default Term under Section 9.1(b)) shall not occur automatically. Renewal of the license requires (i) execution of a new Order Form (or written renewal addendum) by Licensee, which renewal Order Form may, for example, convert a one (1)-year subscription into a multi-year (e.g., three (3)-year) commitment, extend an existing multi-year Term, or otherwise establish a new commitment period as agreed by the parties; and (ii) payment by Licensee of the applicable renewal License Fees in accordance with the renewal Order Form or addendum. If neither (i) nor (ii) occurs prior to the expiration of the then-current Term, this Agreement and the license granted hereunder shall expire automatically at the end of the then-current Term, without further notice and without further action by either party.
(d) Multi-Year Term with Periodic Payments. Where an Order Form specifies a multi-year Term with annual or other periodic payment installments within the Term, Licensee’s failure to pay any such installment when due shall constitute a material breach of this Agreement, subject to the cure provisions of Section 9.2(a) and the termination right of Section 9.2(b)(i). Continued use of the Licensed Software after non-payment is not authorized.
(e) Continued Use After Term Expiration Prohibited. Use of the Licensed Software after the expiration of the Term (whether by failure to renew, failure to pay, or otherwise) is not authorized and constitutes infringement of Licensor’s intellectual property rights. The provisions of Section 9.2(e) (Effects of Termination) and the survival provisions of Section 9.3 shall apply upon any such expiration as if Licensee had been terminated.
9.2 Termination.
(a) Termination for Breach. Either party may terminate this Agreement or any or all applicable Order Forms if the other party breaches a material term and fails to cure the breach within thirty (30) days of receipt of written notice from the non-breaching party. For the avoidance of doubt, Licensee’s failure to pay any License Fees or other amounts due under an Order Form (including any installment payment under a multi-year Term) is subject to this cure provision and may also be subject to the ten (10)-day payment cure provision of Section 9.2(b)(i), at Licensor’s election.
(b) Termination by Licensor. Licensor may terminate this Agreement and the license granted to Licensee upon the occurrence of any of the following events: (i) Licensee fails to pay Licensor any License Fees, charge, tax, or other reimbursement when due and the failure to pay is not cured within ten (10) days of Licensee’s receipt of Licensor’s written notice thereof; or (ii) Licensee transfers title to or possession of the Licensed Software without Licensor’s prior written consent. Licensor may terminate this Agreement immediately at its option upon written notice if Licensee: (1) becomes or is declared insolvent or bankrupt; (2) is the subject of a voluntary or involuntary bankruptcy or other proceeding related to its liquidation or solvency, which proceeding is not dismissed within sixty (60) calendar days after its filing; (3) ceases to do business in the normal course; or (4) makes an assignment for the benefit of creditors. This Agreement shall terminate immediately and automatically upon any determination by a court of competent jurisdiction that either party is excused or prohibited from performing in full all obligations hereunder, including, without limitation, rejection of this Agreement pursuant to 11 U.S.C. § 365.
(c) [Reserved.]
(d) Acceleration of Multi-Year Installments Upon Licensee Breach. Upon any termination of this Agreement by Licensor pursuant to Section 9.2(a) or Section 9.2(b) for Licensee’s material breach (including without limitation non-payment, transfer in violation of Section 12.3, or insolvency), all remaining installment payments owed by Licensee under any Order Form for the then-current multi-year Term shall accelerate and become immediately due and payable, without prejudice to any other rights or remedies of Licensor. Licensee acknowledges that this acceleration provision is reasonable in light of the multi-year commitment Licensee made in the applicable Order Form and the value of the License Fees that Licensor priced and provisioned in reliance on that commitment.
(e) Effects of Termination. Upon termination or expiration of this Agreement:
(i) Cessation of Use. Licensee shall immediately cease all use of the Licensed Software, uninstall the Licensed Software from all of Licensee’s systems and infrastructure, destroy all copies of the Licensed Software (including without limitation installation files, cached copies, archived copies, backup copies, and any documentation containing Licensor’s Confidential Information) in Licensee’s possession or control, and discontinue all access to the Licensed Software.
(ii) Certification of Cessation. Within ten (10) business days following termination or expiration, Licensee shall provide Licensor with a written certification (the “Certification of Cessation”) that satisfies all of the following requirements:
(A) Signatory. The Certification of Cessation shall be signed by a senior officer of Licensee (Chief Information Officer, Chief Information Security Officer, Chief Financial Officer, General Counsel, or other officer at the C-suite or equivalent senior management level) who has authority to bind Licensee. Certification by personnel below such senior level (including without limitation IT staff, helpdesk personnel, support contacts, sales contacts, account managers, or general administrative personnel) shall not satisfy this requirement, regardless of any apparent authority such personnel may otherwise have.
(B) Required Content. The Certification of Cessation shall expressly confirm, in unambiguous language: (1) that Licensee has uninstalled the Licensed Software from all of Licensee’s systems and infrastructure, identified by category (e.g., production environments, staging environments, disaster-recovery environments, archived backups); (2) that Licensee has destroyed all copies of the Licensed Software, including all copies described in subsection (i); (3) the specific date on which uninstallation and destruction were fully completed; (4) that Licensee has discontinued all access to the Licensed Software; and (5) that the certifying signatory has personally satisfied himself or herself, or caused Licensee’s personnel to satisfy themselves, that the foregoing statements are true. A Certification of Cessation that is conditional, ambiguous, partial, qualified by knowledge limitations, or that fails to address all of subsections (B)(1) through (B)(5) above shall not satisfy this requirement.
(C) Delivery Method and Address. The Certification of Cessation shall be delivered to Licensor by both (1) email to [email protected] (or such other email address as Licensor may designate from time to time by written notice to Licensee), with delivery confirmation or read receipt where reasonably available; and (2) registered mail, courier with tracking, or other delivery method providing documented proof of delivery, addressed to Licensor at Intigua, Inc., 51 Pleasant Street #1064, Malden, MA 02148, USA, Attention: Legal Department (or such other physical address as Licensor may designate from time to time by written notice to Licensee). Delivery shall be deemed effective on the later of (i) the date Licensor’s legal department receives the email at the designated email address, or (ii) the date of physical delivery to the designated mailing address. Delivery to any other email address, mailing address, individual, or department within Licensor (including without limitation support contacts, sales contacts, technical support, or account managers) shall not constitute delivery for purposes of this Section 9.2(e). Licensee bears all risk of non-delivery, misdirected delivery, or delivery to unauthorized recipients.
(D) Extension. Licensee’s good-faith request for a reasonable extension of the ten (10) business day period (not to exceed an additional twenty (20) business days), made in writing prior to expiration of the original ten (10) business day period and addressed to [email protected], shall not be unreasonably refused; provided that the obligations under subsections (iii) and (iv) of this Section 9.2(e) shall continue to apply during any such extension period, and the extension shall be effective only upon Licensor’s written acknowledgment of the extension delivered by email to Licensee. Licensor’s email transmission of acknowledgment is governed by Section 4.3.
(iii) Conclusive Presumption of Continued Use. Until Licensor receives a Certification of Cessation that satisfies all of the requirements of subsection (ii), Licensee shall be conclusively presumed to be continuing to use the Licensed Software. The conclusive presumption set forth in this subsection (iii) shall be rebuttable only by Licensee’s delivery, within thirty (30) days of Licensor’s invoice for amounts owed under this Section 9.2(e), of clear and convincing documentary evidence (delivered through the dispute mechanism in subsection (vii)) establishing: (A) the actual date on which Licensee fully uninstalled the Licensed Software, destroyed all copies, and discontinued all access in accordance with subsection (i); (B) the nature and authenticity of the evidence relied upon (which may include, without limitation, system logs showing uninstallation timestamps, server decommissioning records, written confirmations from third-party administrators, or attestations from Licensee’s IT personnel under penalty of perjury); and (C) that the evidence relates to all environments in which the Licensed Software was deployed (production, staging, disaster-recovery, and archival). Licensee’s failure to deliver such evidence within the thirty (30)-day window shall render the conclusive presumption irrebuttable as to that invoice. Licensor’s calculation of amounts owed (other than the cessation date itself, which is subject to rebuttal as provided above) shall be subject only to challenge for arithmetic error or for the use of incorrect inputs (such as use of a non-most-recent Order Form or a list price not actually published by Licensor).
(iv) Liquidated Damages for Unauthorized Post-Term Use. This subsection (iv) applies only where Licensee continues to use the Licensed Software after Term expiration or termination AND has not (whether before or after Term expiration) executed a renewal Order Form accepted by Licensor with the renewal License Fees paid in full or covered by Licensor’s accepted Imminent Renewal Grace Period commitment under Section 4.2(e)(ii). Where Licensee has executed a renewal Order Form and Licensor has accepted late payment of the renewal License Fees, the late-payment consequences of Section 4.2 (interest, late fee, collection costs) shall apply, but Holdover Damages under this subsection (iv) shall not. Where this subsection (iv) applies, Licensee shall pay Licensor, as liquidated damages and not as a penalty, an amount (the “Holdover Damages”) calculated as follows: (A) Daily Accrual Period. Holdover Damages shall accrue daily from the day immediately following the Term expiration or termination date through the earlier of (1) the date Licensor receives a Certification of Cessation that satisfies all requirements of subsection (ii), or (2) the date of certifiable cessation as established under subsection (iii) (the “Holdover Period”). (B) Daily Rate. For each day in the Holdover Period, Licensee shall pay one and one-half (1.5) times the daily equivalent of the greater of: (1) the annualized License Fees payable under the most recent Order Form (calculated by dividing the total License Fees of the most recent Order Form by the number of years in that Order Form’s Term, then dividing by 365), or (2) Licensor’s then-current standard list price for a one (1)-year subscription at the same quantity, configuration, and product set as identified in the most recent Order Form, divided by 365. For purposes of this subsection (B), “standard list price” means the price published on Licensor’s website (currently at https://jetpatch.com/pricing-plans/, or such other URL as Licensor may designate from time to time) or otherwise set forth in Licensor’s then-current customer-facing price documentation maintained by Licensor in the ordinary course of business; Licensor shall produce its standard list price documentation upon Licensee’s written request. (C) Minimum Holdover Damages. Notwithstanding the calculation in (B) above, the minimum amount payable for any Holdover Period of one (1) day or more shall be thirty (30) days at the daily rate calculated under (B) (the “Minimum Holdover Damages”), regardless of whether the actual Holdover Period is shorter than thirty (30) days. The Minimum Holdover Damages reflects the parties’ acknowledgment that Licensor’s enforcement costs and lost-renewal-pipeline harm are substantially fixed regardless of the precise duration of unauthorized use. (D) Annual Cap; Multi-Year Holdover. For each twelve (12)-month period of the Holdover Period (each, an “Annual Holdover Period”), Holdover Damages shall be capped at the greater of: (1) the annualized License Fees payable under the most recent Order Form, or (2) Licensor’s then-current standard list price for a one (1)-year subscription at the same quantity, configuration, and product set, in each case as published or in effect on the first day of the applicable Annual Holdover Period. For Holdover Periods extending beyond twelve (12) months, the calculation under subsections (B) and (D) shall reset on each anniversary of the Term expiration or termination date, with the daily rate and annual cap re-referenced using Licensor’s then-current standard list price published on the first day of the applicable Annual Holdover Period. The Minimum Holdover Damages applies once at the commencement of the Holdover Period and does not reset annually. If Licensor’s then-current standard list price for the same quantity, configuration, and product set is not reasonably ascertainable for any Annual Holdover Period, the daily rate and annual cap for that Annual Holdover Period shall instead use the annualized License Fees payable under the most recent Order Form. (E) Daily Accrual; Interest from Day One. Holdover Damages accrue and become due daily during the Holdover Period. Interest under Section 4.2(a) shall accrue daily on accrued but unpaid Holdover Damages from the first day of the Holdover Period, regardless of when Licensor issues an invoice for Holdover Damages, provided that Licensor’s records (including without limitation Licensor’s customer relationship management system) demonstrate delivery of a renewal proposal applicable to the current renewal cycle to Licensee at least thirty (30) days prior to the Term expiration or termination date. Where Licensor’s records do not demonstrate such timely delivery of an applicable renewal proposal, interest on Holdover Damages shall accrue from the due date of Licensor’s first Holdover Damages invoice in accordance with the standard mechanism of Section 4.2(a). Licensee waives any defense based on lack of demand or pre-invoice notice with respect to the accrual of Holdover Damages and interest thereon, where Licensor’s records demonstrate delivery of a renewal proposal in accordance with this subsection (E). (F) Five-Business-Day Payment Buffer. Notwithstanding the foregoing, where Licensee delivers payment in full of the renewal License Fees set forth in Licensor’s most recent renewal proposal applicable to the current renewal cycle (or, in the absence of such a delivered renewal proposal, the License Fees payable under Licensee’s most recent Order Form) within five (5) business days following the Term expiration or termination date, no Holdover Damages, interest, or late payment fees shall apply, and the Term shall be deemed renewed effective as of the original Term expiration date. The buffer in this subsection (F) is automatic and does not require any further action or communication by Licensee, but is conditioned on (i) payment in full (not partial payment), (ii) payment of the amount set forth in Licensor’s most recent applicable renewal proposal or, where applicable, the most recent Order Form (not a different amount), and (iii) receipt of payment by Licensor (not merely initiation of payment by Licensee) within the five (5)-business-day window. (G) Late Payment Fee. The late payment fee under Section 4.2(b) shall apply to each Holdover Damages invoice issued by Licensor in accordance with the standard mechanism of Section 4.2(b) (i.e., triggered at thirty (30) days past the invoice due date). Licensor’s standard practice shall be to issue an initial Holdover Damages invoice no earlier than thirty (30) days following the Term expiration or termination date and at intervals thereafter as Licensor reasonably determines. (H) Holdover Damages In Addition To Other Amounts. Holdover Damages are subject to all of the late-payment consequences set forth in Section 4.2 (including without limitation interest under Section 4.2(a), the late payment fee under Section 4.2(b), collection costs and attorneys’ fees under Section 4.2(c), cross-default under Section 4.2(f), and time-of-the-essence under Section 4.2(h)), and are in addition to (not in lieu of) any other amounts owed by Licensee under this Agreement, including without limitation amounts accelerated under Section 9.2(d). (I) Liquidated Damages Acknowledgment. The parties acknowledge and agree that: (1) the actual damages caused by Licensee’s unauthorized post-Term use are difficult or impossible to calculate with precision; (2) the Holdover Damages reflect a reasonable estimate of the harm caused by such unauthorized use, including without limitation the loss of the renewal commitment that Licensor priced and provisioned in reliance on Licensee’s commitment to cease use upon expiration, the administrative and enforcement costs incurred by Licensor, and the value of the unauthorized use itself; and (3) the Holdover Damages are not a penalty but rather a fair and reasonable measure of liquidated damages.
(v) Election of Remedies; IP Infringement. Licensor’s right to recover Holdover Damages under subsection (iv) does not waive Licensor’s right to treat unauthorized post-Term use as infringement of Licensor’s intellectual property rights and pursue all available legal and equitable remedies, including without limitation actual damages, statutory damages, attorneys’ fees, and injunctive relief. Licensor may, at its sole election, pursue Holdover Damages, IP infringement remedies, or both, provided that Licensor shall not recover twice for the same period of unauthorized use. Licensor’s election among remedies under this subsection (v) may be made at any time, including after Licensor has commenced suit or pursued any specific remedy, and Licensor’s pursuit of one remedy does not constitute an election against any other available remedy until Licensor has actually obtained recovery for the period in question. Licensee acknowledges that monetary damages may be inadequate to remedy unauthorized post-Term use and that Licensor shall be entitled to seek injunctive relief without the need to post bond or prove actual damages, in addition to any other remedies available at law or in equity.
(vi) Audit Right Reservation. Licensor reserves all rights under Section 4.5 (Audit Rights) to verify Licensee’s compliance with subsection (i) of this Section 9.2(e). The audit period under Section 4.5 shall extend, with respect to verification of compliance with subsection (i), for the longer of: (A) one (1) year following Licensor’s receipt of a Certification of Cessation that satisfies all of the requirements of subsection (ii), provided that the Certification of Cessation was delivered to Licensor within the original ten (10) business day period under subsection (ii) (or any extension granted by Licensor under subsection (ii)(D)); or (B) two (2) years following the date of termination or expiration of this Agreement, in any case where the Certification of Cessation was not delivered within the period required by subsection (ii) (whether the Certification was delivered late, never delivered, or delivered in a form that fails to meet the requirements of subsection (ii)). The audit period under this subsection (vi) is in addition to and independent of the post-termination audit period otherwise specified in Section 4.5.
(vii) Payment of Outstanding Amounts. Licensee shall pay any invoice issued by Licensor within twenty (20) days of receipt. Licensee may dispute an invoice only by delivering written notice of the dispute to [email protected] prior to the invoice due date, specifically identifying the disputed amount, the basis for the dispute, and the amount Licensee believes to be correct. Licensee shall pay the undisputed portion of any invoice on the original due date. The disputed portion shall be subject to good-faith resolution between the parties, but if not resolved within thirty (30) days of Licensor’s receipt of the dispute notice, Licensor may pursue all remedies available under this Agreement with respect to the disputed amount, and the disputed amount shall accrue interest under Section 4.2(a) from the original due date if Licensor’s position is sustained. The dispute mechanism in this subsection (vii) applies to all invoices issued by Licensor under this Section 9.2(e), including without limitation invoices for amounts accelerated under Section 9.2(d), Holdover Damages, interest, late fees, and collection costs.
(viii) Return or Destruction of Confidential Information. Within thirty (30) days following termination or expiration of this Agreement, each party shall, at the other party’s election, return or destroy all Confidential Information of the other party in its possession or control, and shall, upon request, certify in writing such return or destruction by an officer of such party. The destruction or return obligations of this subsection (viii) are in addition to, and not in lieu of, the destruction obligations of subsection (i) (which apply specifically to the Licensed Software).
(ix) Renewal Mechanics; Purchase Orders Insufficient. For the avoidance of doubt, the obligations that prevent Licensee from holdover status under this Section 9.2(e) are: (A) execution of a renewal Order Form by Licensee, AND (B) either (1) payment in full of the renewal License Fees on or before the Term expiration date, or (2) Licensee’s written commitment under Section 4.2(e)(ii) (Imminent Renewal Grace Period) issued on or before the Term expiration date AND Licensor’s written acceptance of such commitment delivered in accordance with Section 4.2(e)(ii). Issuance of a purchase order alone, without satisfaction of both (A) and (B) above, does not satisfy this obligation and shall not prevent the accrual of Holdover Damages or related amounts under this Section 9.2(e). For the further avoidance of doubt, a purchase order is a procurement instrument issued by Licensee and is not, by itself, a contractual renewal mechanism.
9.3 Survival. The following provisions of this Agreement shall survive any expiration or termination of this Agreement and continue in full force and effect: Section 1 (Parties; Formation; Binding Effect), Section 2 (Definitions, to the extent necessary to interpret surviving provisions), Section 3.2 (License Restrictions), Sections 4.1 through 4.4 (with respect to amounts accrued and unpaid as of expiration or termination, including all late-payment consequences and the email-delivery framework of Section 4.3), Section 4.5 (Audit Rights, for one (1) year following expiration or termination), Sections 4.6 through 4.8 (with respect to data already provided), Section 5.4 (Disclaimer), Section 6 (Confidentiality, for the duration specified in Section 6.1), Section 7 (Indemnity), Section 8 (Limitation on Liability, including Section 8.3 Limitation Period), Section 9.2(d) (Acceleration), Section 9.2(e)(i) through (ix) (Effects of Termination, including Cessation of Use, Certification of Cessation, Conclusive Presumption, Holdover Damages, Election of Remedies, Audit Right Reservation, Payment of Outstanding Amounts, and Return or Destruction of Confidential Information, and Renewal Mechanics), this Section 9.3, Section 10 (Order of Precedence; No Override; Authority and Global Enforceability), Section 11 (Governing Law; Forum; Arbitration), Section 12 (General Provisions, including Section 12.2 Export Compliance and Sanctions), Section 13 (Data Protection, with respect to data already processed and ongoing obligations), Section 14 (Information Security, with respect to obligations relating to data already in Licensor’s possession), and Section 15 (Anti-Corruption, with respect to conduct prior to expiration or termination). Any cause of action that has accrued prior to expiration or termination shall survive such expiration or termination.
10. ORDER OF PRECEDENCE; NO OVERRIDE BY EXTERNAL DOCUMENTS
10.1 Hierarchy and Exclusivity. This Agreement, together with any Order Form executed by Licensor (or executed by an authorized representative of Licensor expressly on Licensor’s behalf), constitutes the complete and exclusive understanding between the parties with respect to the Licensed Software and Services. In the event of any conflict between this Agreement and an Order Form executed by Licensor, the Order Form shall control solely with respect to the specific transaction it governs and only to the extent the conflicting Order Form provision is identified by reference to the specific Section of this Agreement it modifies and is initialed or specifically agreed to in writing by Licensor.
10.2 No Override by External Documents. No other document, whether issued by Licensee, by Licensee’s procurement department or affiliate, by any reseller, distributor, Channel Partner, or other third party, by any procurement portal or e-procurement system, or by any other third party, shall modify, supplement, or override this Agreement. Without limiting the foregoing:
(a) Licensee Purchase Orders and Procurement Terms. The pre-printed or boilerplate terms on any purchase order, requisition, or similar document issued by Licensee or by any Licensee affiliate, and any terms and conditions referenced or incorporated by such documents (including without limitation Licensee’s standard purchasing terms, supplier codes of conduct, master services agreements not executed by Licensor, or e-procurement portal terms), shall have no force or effect against Licensor, regardless of whether Licensor accepts, acknowledges, or processes such purchase order, and Licensor’s acceptance of any such purchase order shall be deemed solely an acknowledgment of the order quantity and not an acceptance of any other terms.
(b) Reseller and Distributor Documents. Any quotation, order form, sales acknowledgment, invoice, or other document issued by any reseller, distributor, Channel Partner, or third party (other than Licensor), and any terms and conditions contained in or referenced by such documents, shall not modify, supplement, or override this Agreement as between Licensor and Licensee. Such reseller or distributor documents may govern the commercial relationship between Licensee and such reseller or distributor (including pricing, payment terms, delivery, and reseller-provided services), but shall have no force or effect against Licensor.
(c) Click-Through and Procurement Portal Terms. Any terms and conditions presented to Licensor (whether by Licensee, by Licensee’s procurement department or affiliate, by any third-party procurement portal, e-signature platform, supplier registration system, or similar electronic system, or by any other third party) as a precondition to Licensor’s submission of a quote, acceptance of a purchase order, registration as a supplier, execution of an Order Form, processing of an invoice, receipt of payment, or other interaction with Licensee or such system, shall have no force or effect against Licensor unless Licensor has expressly agreed to such terms in a writing signed by an authorized representative of Licensor. Licensor’s acceptance, acknowledgment, click-through, or electronic signature of such terms by any Licensor employee in the ordinary course of processing a transaction shall not constitute the requisite express agreement.
(d) Authorized Representative. For purposes of this Section 10, “authorized representative of Licensor” means an officer of Licensor or such other Licensor employee specifically designated in writing by Licensor as having authority to execute or modify Licensor’s commercial agreements. No member of Licensor’s sales, channel, technical support, or implementation teams shall be deemed an authorized representative for purposes of modifying this Agreement absent such written designation.
10.3 Authority, Binding Effect, and Global Enforceability.
(a) Authority Warranty. Each individual or entity that executes this Agreement, accepts this Agreement online, submits a Channel Order, or causes a Formation Event under Section 1.1 represents and warrants to Licensor that: (i) such individual or entity has full legal capacity and authority to bind Licensee; (ii) the execution, acceptance, or submission has been duly authorized by Licensee; and (iii) this Agreement constitutes the legal, valid, and binding obligation of Licensee, enforceable against Licensee in accordance with its terms, subject to applicable bankruptcy, insolvency, and similar laws.
(b) Channel Partner Indemnity for Authority Defects. Where a Channel Order is submitted by a Channel Partner and Licensee subsequently disputes the binding effect of this Agreement based on alleged lack of authority of the submitting Channel Partner, the Channel Partner shall indemnify, defend, and hold Licensor harmless from and against any resulting liabilities, claims, demands, and expenses (including reasonable attorneys’ fees), in accordance with the indemnification obligations set forth in Licensor’s then-current Reseller Terms and any applicable Distributor Agreement.
(c) Severability and Mandatory Local Law. If any provision of this Agreement is held unenforceable under the mandatory law of any jurisdiction in which Licensee is located or in which Licensee uses the Licensed Software, such provision shall be deemed modified to the minimum extent necessary to render it enforceable in that jurisdiction, and the remainder of this Agreement shall remain in full force and effect. Mandatory protections of local law that cannot be contractually waived (including without limitation EU consumer protection law, UK consumer law, the UAE Commercial Agencies Law where applicable, the Indian Contract Act mandatory provisions, and similar mandatory laws of other jurisdictions) apply only to the extent legally required and do not otherwise modify this Agreement.
(d) Successor Liability. This Agreement binds and inures to the benefit of the parties’ respective successors and permitted assigns, including without limitation any entity acquiring all or substantially all of Licensee’s business or assets (whether by merger, asset purchase, stock purchase, or otherwise), and any such successor shall be deemed Licensee for all purposes hereunder unless and until Licensor consents in writing to release of the predecessor.
(e) Affiliate Use; Affiliate Liability. Where Licensee permits any of its affiliates, subsidiaries, or parent entities (each, a “Licensee Affiliate”) to access or use the Licensed Software, (i) such Licensee Affiliate shall be deemed bound by this Agreement to the same extent as Licensee, (ii) Licensee shall be jointly and severally liable for any breach of this Agreement by such Licensee Affiliate, and (iii) Licensee shall ensure that such Licensee Affiliate complies with all terms hereof. Licensor’s remedies for breach are not limited to action against the breaching entity but may be pursued against Licensee directly.
11. GOVERNING LAW; FORUM; ARBITRATION
11.1 Governing Law. This Agreement is governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, United States, without regard to its conflict-of-laws principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
11.2 Forum and Dispute Resolution. If Licensee is located in the United States, the state and federal courts located in Suffolk County, Massachusetts shall have exclusive jurisdiction over any dispute arising out of or relating to this Agreement, and each party irrevocably submits to the jurisdiction of such courts and waives any objection based on forum non conveniens. If Licensee is located outside the United States, any dispute, controversy, or claim arising out of or relating to this Agreement, including its existence, validity, interpretation, performance, breach, or termination, shall be finally resolved by binding arbitration under the Rules of Arbitration of the International Chamber of Commerce (ICC) by one (1) arbitrator appointed in accordance with those Rules. The seat of arbitration shall be Boston, Massachusetts, United States. The language of the arbitration shall be English. Judgment on the award may be entered in any court of competent jurisdiction.
11.3 Licensor’s Right to Pursue Enforcement Anywhere. Notwithstanding Section 11.2, Licensor may, at its option, bring an action against Licensee in any jurisdiction in which Licensee is located, in which Licensee has assets, or in which Licensee uses the Licensed Software, for purposes of enforcing this Agreement, recovering amounts due under this Agreement, or enforcing any judgment or arbitration award obtained in any other forum. This Section 11.3 is for the sole benefit of Licensor, and Licensee waives any objection to such enforcement actions on grounds of forum non conveniens or otherwise.
11.4 Injunctive Relief. Notwithstanding the foregoing, Licensor may seek injunctive or other equitable relief (including, without limitation, to enforce Sections 3.2, 6, and 10) in any court of competent jurisdiction without first resorting to arbitration.
12. GENERAL PROVISIONS
12.1 Bankruptcy. All rights and licenses that Licensor grants to Licensee under this Agreement except for any rights in trademarks are, for purposes of Section 365(n) of Title 11 of the United States Bankruptcy Code (“Code”), licenses to rights in “intellectual property” as defined in the Code. The parties agree that Licensee shall retain and may fully exercise all of its rights under the Code. Licensee shall receive a complete duplicate of, or access to, as appropriate, any such intellectual property and all embodiments of such intellectual property, and Licensor shall promptly deliver the same upon Licensee’s request if Licensee does not already have possession or access (i) within sixty (60) days of the commencement of any bankruptcy proceeding or such other time as specified by the Bankruptcy Court unless Licensor elects to continue to perform all of its obligations under the Agreement during that time; or (ii) if this Agreement is rejected by or on behalf of Licensor during the time stated in subsection (i) above. Licensor hereby grants to Licensee a nonexclusive license in the intellectual property only to the same extent as the rights stated in the applicable Order Form and any Exhibit incorporated into this Agreement. Licensee covenants not to invoke its rights to the Licensed Software under the foregoing sentence unless the events in (i) or (ii) occur.
12.2 Export Compliance and Sanctions. The Licensed Software and Documentation provided to Licensee pursuant to this Agreement may be subject to U.S. export control laws and regulations, including without limitation the Export Administration Regulations (EAR), the International Traffic in Arms Regulations (ITAR), U.S. Department of the Treasury Office of Foreign Assets Control (OFAC) sanctions, EU Regulation (EU) 2021/821 and EU sanctions regulations, UK export controls and sanctions administered by OFSI, United Nations sanctions, and the applicable export control and sanctions laws of other jurisdictions (collectively, “Export Control Laws”).
(a) Licensor Compliance. Licensor shall comply with all Export Control Laws applicable to its development, sale, transfer, or export of the Licensed Software and Documentation. Licensor certifies that, as of the Effective Date, it is not restricted from making or receiving U.S. exports.
(b) Licensee Representations and Warranties. Licensee represents, warrants, and covenants that: (i) Licensee, Licensee’s affiliates, Licensee’s personnel accessing or using the Licensed Software, and Licensee’s beneficial owners are not located in, organized under the laws of, ordinarily resident in, or owned or controlled by a party located in, any country or territory that is the subject of comprehensive U.S., EU, UK, or UN sanctions (including, as of the Effective Date, Cuba, Iran, North Korea, Syria, the Crimea, Donetsk, Luhansk, Kherson, and Zaporizhzhia regions of Ukraine, and as may be updated from time to time); (ii) Licensee, Licensee’s affiliates, Licensee’s personnel, and Licensee’s beneficial owners are not listed on the U.S. Specially Designated Nationals and Blocked Persons List, the U.S. Entity List, the U.S. Denied Persons List, the EU Consolidated Financial Sanctions List, the UK Consolidated List, the UN Consolidated Sanctions List, or any equivalent restricted-party list maintained by a governmental authority of competent jurisdiction; (iii) Licensee will not use, export, re-export, transfer, sublicense, or provide access to the Licensed Software in violation of any Export Control Law; (iv) Licensee will not use the Licensed Software in connection with any activities related to nuclear, chemical, biological, or missile weapons proliferation, or in any other prohibited end-use; and (v) Licensee shall obtain all licenses, authorizations, and approvals required under applicable Export Control Laws prior to exporting, re-exporting, or providing access to the Licensed Software.
(c) Continuing Compliance. Licensee shall promptly notify Licensor in writing (delivered to [email protected]) if any of the representations and warranties in subsection (b) ceases to be accurate at any time during the Term, or if Licensee becomes aware of any actual or threatened export control or sanctions violation related to the Licensed Software. Licensor shall have the right to suspend Licensee’s access to support, maintenance, and Updates and to terminate this Agreement immediately upon any such change, suspected change, or violation, in addition to any other rights and remedies available to Licensor.
(d) Cooperation. Licensee shall reasonably cooperate with Licensor in connection with any inquiry, audit, investigation, or proceeding by any governmental authority relating to compliance with Export Control Laws in connection with this Agreement.
12.3 Assignment. Licensee shall not, directly or indirectly, by operation of law or otherwise, transfer or assign the Licensed Software or this Agreement, or transfer, assign, or sublicense any license rights granted hereunder, in whole or in part, without the prior written consent of Licensor, which consent shall be at Licensor’s sole discretion. Any attempted assignment in violation of this Section shall be void.
12.4 Waiver and Amendments. The failure of a party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver of that party’s rights or the provision, nor shall it be construed as a waiver of any succeeding breach of such provision or the waiver of the provision itself. All waivers must be in writing and signed by the party charged with the waiver. This Agreement may only be amended in accordance with Section 3.4 or in a subsequently dated writing signed by authorized representatives of the parties.
12.5 Severability. If any provision of this Agreement is determined to be unenforceable or invalid under applicable law or be so held by applicable court decision, then such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole. In such event, the invalid or unenforceable provision shall be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law and court decisions. Section 10.3(c) (Severability and Mandatory Local Law) governs in the case of mandatory local law unenforceability.
12.6 Independent Contractors. The relationship of the parties under this Agreement is that of independent contractors. Nothing in this Agreement shall be construed to create a joint venture, partnership, employment, or agency relationship. Neither party has the right or authority to assume or create any obligation or responsibility on behalf of the other party.
12.7 Force Majeure. Except with respect to payment obligations, neither party shall be liable under this Agreement because of a failure or delay in performing its obligations hereunder on account of riots, insurrection, fires, floods, acts of God, war, governmental action, pandemic, epidemic, or any other cause which is beyond the reasonable control of such party (each, a “Force Majeure Event”). For the avoidance of doubt, no Force Majeure Event shall excuse, delay, or reduce Licensee’s obligations to pay License Fees, Holdover Damages, interest, late payment fees, collection costs, or any other amounts owed by Licensee under this Agreement, all of which shall remain payable in accordance with the terms of this Agreement notwithstanding any Force Majeure Event. The party affected by a Force Majeure Event shall: (a) provide prompt written notice to the other party, identifying the nature of the Force Majeure Event and the affected obligations; (b) use commercially reasonable efforts to mitigate the impact of the Force Majeure Event and resume performance as soon as reasonably practicable; and (c) be excused from performance only for so long as the Force Majeure Event prevents such performance. If a Force Majeure Event prevents a party from performing its non-payment obligations under this Agreement for a continuous period of one hundred eighty (180) days or more, the other party may terminate this Agreement upon written notice without penalty, provided that Licensee’s payment obligations accrued prior to such termination remain payable.
12.8 Counterparts. This Agreement may be signed in counterparts, which together shall form a single agreement as if all parties had executed the same document.
12.9 Headings and Drafting. The headings in this Agreement are included for the convenience of the parties and shall not be used to construe or interpret this Agreement. This Agreement shall be interpreted as if drafted by both parties. It shall not be construed in favor of or against a party based on the author of the document.
12.10 Language. This Agreement has been drafted in English. The English-language version shall be the controlling version for all purposes, including interpretation, construction, and enforcement. Any translation provided by Licensor for convenience shall not alter the meaning of the English-language version. Licensee represents that it has read and understood this Agreement in English or has obtained a satisfactory translation at its own expense. To the extent applicable law of Licensee’s jurisdiction requires this Agreement to be provided in a local language, Licensee expressly waives such requirement to the maximum extent permitted by law.
12.11 Electronic Acceptance and Records. Licensee agrees that its acceptance of this Agreement by clicking “I Agree,” by electronic signature, by execution of a Channel Order, by use of the Licensed Software, or by any similar mechanism constitutes a valid, binding, and enforceable electronic signature under the U.S. Electronic Signatures in Global and National Commerce Act (ESIGN), the Uniform Electronic Transactions Act (UETA), EU Regulation (EU) No 910/2014 (eIDAS), the UK Electronic Communications Act 2000, and applicable e-commerce laws of the United Arab Emirates, Qatar, the Kingdom of Saudi Arabia, Pakistan, India, and other jurisdictions. Licensee consents to the formation of this Agreement by electronic means and waives any right to challenge its validity or enforceability on the basis that it was formed or signed electronically. Licensor may retain records of Licensee’s acceptance (including IP address, timestamp, user agent, form-field submissions, Order Form executed, and the specific version of this Agreement accepted) and such records shall be admissible as evidence of Licensee’s acceptance in any dispute.
12.12 Notices.
(a) General Notice Mechanism. Except as otherwise specified in this Agreement, all notices, requests, demands, and communications under this Agreement shall be in writing and shall be delivered: (i) to Licensee, at the email and physical addresses identified on the most recent Order Form executed by Licensee, or such other addresses as Licensee may have designated in writing in accordance with Section 4.3; (ii) to Licensor, at Intigua, Inc., 51 Pleasant Street #1064, Malden, MA 02148, USA, Attention: Legal Department, or by email to [email protected] (or such other address as Licensor may specify in writing).
(b) Delivery Methods. Notices may be delivered by: (i) personal delivery; (ii) registered or certified mail, return receipt requested; (iii) nationally recognized overnight courier with tracking; or (iv) email to the designated email address.
(c) Effectiveness. Notices shall be deemed effective upon: (i) actual receipt, in the case of personal delivery; (ii) the date of delivery shown on the return receipt or courier tracking record, in the case of mail or courier; or (iii) transmission to the designated email address, in the case of email, subject to the email-delivery framework of Section 4.3.
(d) Specialized Notice Provisions Govern. This Section 12.12 shall not apply to, and is superseded by, the specialized notice provisions of: (i) Section 3.4 (Versions of this Agreement); (ii) Section 4.3 (Email Delivery Risk and Notification Addresses); (iii) Section 9.2(e)(ii) (Certification of Cessation); and (iv) Section 14.4 (Security Incident Notification, including Breach Notification Address).
12.13 Interpretation. The parties agree that they have been, or have had the opportunity to be, represented by counsel during the negotiation and execution of this Agreement and therefore waive the application of any law, regulation, holding, or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document.
12.14 Entire Agreement. This Agreement and all fully executed Order Forms state the complete understanding and agreement of the parties regarding the subject matter herein. It supersedes all prior or contemporaneous proposals, agreements, or other communications between the parties, oral or written, regarding the subject matter, except that this Agreement does not supersede or affect the Evaluation Agreement (which is a separate, standalone agreement governing evaluation use).
13. DATA PROTECTION
13.1 Limited Personal Data Flow. The Licensed Software is installed and operates entirely within an environment under Licensee’s control, including without limitation Licensee’s on-premises infrastructure, Licensee’s cloud accounts, hybrid environments, or other cloud instances that Licensee controls (whether or not directly owned by Licensee). The Licensed Software is not provided as a hosted, software-as-a-service, or cloud-hosted production offering by Licensor. In the ordinary course of using the Licensed Software, Licensee’s end-user data, application data, operational data, and other production data does not transmit to, traverse through, or become accessible to Licensor. Personal data flows from Licensee to Licensor are limited to: (a) contact information (name, business email, phone number, title) of Licensee’s IT, technical, billing, or administrative personnel that Licensee provides to Licensor for purposes of relationship management, license administration, and support; (b) license validation data as described in Section 4.6; and (c) information voluntarily included by Licensee’s personnel in support tickets and related communications under Section 4.8.
13.2 Roles. With respect to the limited personal data described in Section 13.1, Licensor acts as a controller for purposes of the relationship-management and license-administration personal data described in Section 13.1(a), and as a processor for purposes of any incidental personal data of third parties that Licensee may include in support tickets under Section 13.1(c). Licensee acknowledges and agrees that Licensee shall not knowingly transmit to Licensor any personal data of Licensee’s end users, customers, or other data subjects whose personal data Licensee processes through the Licensed Software, except as may be incidentally included in good-faith support requests as described in Section 4.8.
13.3 Compliance with Applicable Data Protection Laws. Licensor shall comply with all data protection laws applicable to Licensor’s processing of personal data described in Section 13.1, including without limitation the EU General Data Protection Regulation (Regulation (EU) 2016/679), the UK GDPR and Data Protection Act 2018, the Swiss Federal Act on Data Protection, the California Consumer Privacy Act and California Privacy Rights Act, the Brazilian LGPD, the Indian Digital Personal Data Protection Act, and any other applicable data protection law of jurisdictions in which Licensor processes such data. Licensor’s processing of personal data is further governed by Licensor’s Privacy Policy, available at https://jetpatch.com/privacy-policy/, as may be updated by Licensor from time to time.
13.4 Sub-Processors. Licensor uses third-party service providers to support its business operations, some of which process personal data described in Section 13.1 on Licensor’s behalf (each, a “Sub-Processor”). As of the Effective Date, Licensor’s Sub-Processors that process Licensee-related personal data are: (a) HubSpot, Inc. (CRM and customer relationship management); and (b) Atlassian Pty Ltd (Jira — issue tracking and license entitlement management). Licensor may engage additional or replacement Sub-Processors from time to time. Licensor maintains a current list of all Sub-Processors that process Licensee-related personal data and shall provide such list to Licensee upon Licensee’s written request, subject to the conditions set forth in Section 14.6 (Audit Reports and Sub-Processor List Access). Where Licensor proposes to engage a new Sub-Processor or replace an existing Sub-Processor that will process Licensee-related personal data, Licensor shall: (a) provide Licensee with at least thirty (30) days’ prior written notice (which may be provided by email to Licensee’s designated address under Section 4.3, or by updating Licensor’s published Sub-Processor list at a URL identified in such notice) identifying the new or replacement Sub-Processor and a brief description of its function; (b) ensure that the new or replacement Sub-Processor is bound by data protection obligations substantially equivalent to those imposed on Licensor under this Agreement; and (c) consider in good faith any reasonable, written objection from Licensee delivered within thirty (30) days of such notice that is based on genuine data protection concerns (and not on commercial or vendor-preference grounds). If Licensee delivers such a reasonable, good-faith data protection objection and the parties cannot, despite good faith discussion, resolve the objection within sixty (60) days following Licensor’s receipt thereof, Licensee’s sole remedy shall be to terminate the specific feature, module, or service of the Licensed Software whose function depends on the objected-to Sub-Processor (and not this Agreement as a whole), with a pro-rata refund limited to License Fees Licensee has paid for that specific feature, module, or service for the period after such termination. Licensor’s selection of a Sub-Processor that holds a current SOC 2 Type II report, ISO/IEC 27001 certification, or equivalent industry-recognized security certification or attestation shall be presumptively reasonable and shall not, by itself, constitute grounds for a reasonable data protection objection. Routine changes that do not introduce a new Sub-Processor (for example, changes in the underlying infrastructure, region, or service tier of an existing Sub-Processor) do not require notice under this Section 13.4 unless such changes materially expand the categories of personal data processed or the geographic locations of processing.
13.5 Sub-Processor Obligations. Licensor shall require each Sub-Processor that processes Licensee-related personal data to: (a) be subject to confidentiality obligations consistent with those in Section 6 of this Agreement; (b) implement appropriate technical and organizational security measures consistent with Section 14 (Information Security) of this Agreement; and (c) process personal data only for the purposes for which Licensor engages such Sub-Processor.
13.6 Customer Personal Data Stays in Customer Environment. For the avoidance of doubt and notwithstanding any other provision of this Agreement: (a) the Licensed Software does not transmit Licensee’s end-user personal data, application data, or operational data to Licensor; (b) Licensor is not a controller or processor of such data; and (c) Licensee retains full control over and responsibility for the personal data processed by the Licensed Software within Licensee’s environment.
14. INFORMATION SECURITY
14.1 Information Security Program. Licensor maintains a comprehensive information security program that is aligned with industry-recognized frameworks, including ISO/IEC 27001 (Information Security Management Systems) and the AICPA SOC 2 Type II Trust Services Criteria. Licensor shall maintain such program throughout the Term and shall implement and maintain administrative, physical, and technical safeguards reasonably designed to protect the confidentiality, integrity, and availability of Licensee’s Confidential Information and Licensee-related personal data (as described in Section 13.1) processed by Licensor.
14.2 Compliance Certifications and Reports. Licensor shall use commercially reasonable efforts to maintain, throughout the Term: (a) active ISO/IEC 27001 certification; and (b) a current SOC 2 Type II report or equivalent independent attestation (collectively, the “Certifications”). Licensor shall use commercially reasonable efforts to renew the Certifications and obtain successor SOC 2 Type II reports on schedule, including reasonable efforts to align audit cycles to avoid material gaps in coverage. Where any lapse, suspension, withdrawal, or material non-renewal of either Certification (a “Certification Lapse”) occurs, Licensor shall provide written notice (which may be by email to Licensee’s designated address under Section 4.3 or by posting on Licensor’s customer-facing trust center or compliance page) within thirty (30) days of the Certification Lapse. The notice shall describe the nature and scope of the Certification Lapse, the cause (to the extent known), the compensating controls Licensor will maintain during the Certification Lapse, and Licensor’s plan and estimated timeline to restore the Certification. Licensor shall provide reasonable updates to Licensee on the status of restoration efforts during the Certification Lapse. A Certification Lapse shall not, by itself, constitute a breach of this Agreement, provided that Licensor has used commercially reasonable efforts to maintain the Certification, has provided notification in accordance with this Section 14.2, and is using commercially reasonable efforts to restore the Certification. Licensee’s exclusive remedy with respect to a Certification Lapse shall be Licensor’s compliance with the notification and remediation obligations of this Section 14.2. For the avoidance of doubt, a Certification Lapse for which Licensor has provided notification and is using commercially reasonable efforts to remediate shall not give rise to a right of termination, refund, fee adjustment, or any other remedy under this Agreement.
14.3 Specific Security Controls. Without limiting the generality of Section 14.1, Licensor’s information security program includes the following controls:
(a) Encryption. Encryption of Licensee Confidential Information and Licensee-related personal data at rest using industry-standard encryption algorithms (currently AES-256 or equivalent), and in transit using TLS 1.2 or higher;
(b) Access Controls. Multi-factor authentication for all administrative and privileged access to Licensor systems that process Licensee Confidential Information or Licensee-related personal data;
(c) Endpoint Security. Centralized mobile device management and endpoint security controls for Licensor’s employee devices that may access Licensee Confidential Information;
(d) Confidentiality Obligations. All Licensor personnel with access to Licensee Confidential Information are subject to written confidentiality obligations consistent with the requirements of this Agreement; and
(e) Independent Penetration Testing. Annual independent penetration testing of Licensor’s production infrastructure conducted by a qualified third-party security firm.
14.4 Security Incident Notification.
(a) Definition. A “Security Incident” means any actual or reasonably suspected unauthorized access to, disclosure of, alteration of, or destruction of Licensee Confidential Information or Licensee-related personal data in Licensor’s possession or control. For the avoidance of doubt, unsuccessful attempts to gain unauthorized access (including without limitation routine pings, port scans, denial-of-service attacks, log-in attempts, or similar activity that does not result in unauthorized access) do not constitute Security Incidents.
(b) Notification Timing. Licensor shall notify Licensee of a Security Incident affecting Licensee’s data without undue delay and in any event within seventy-two (72) hours after Licensor becomes aware of such Security Incident.
(c) Designated Breach Notification Address. Licensee shall designate, by written notice to Licensor (delivered to [email protected]), one or more email addresses (the “Breach Notification Address”) for receipt of Security Incident notifications under this Section 14.4. Licensee may also designate a separate physical address as a backup. Licensee shall maintain and promptly update the Breach Notification Address. Licensee bears all risk of failing to designate, failing to update, or providing inaccurate Breach Notification Addresses, and any such failure shall not extend the seventy-two (72) hour notification timeline, alter the effectiveness of any notification, or relieve Licensee of any obligation under this Agreement. Where Licensee has not designated a Breach Notification Address, Licensor’s transmission of Security Incident notification to the most recent contact information on file for Licensee (or, where applicable, in accordance with Section 4.3) shall constitute compliance with this Section 14.4. Licensor’s email transmission of Security Incident notifications is governed by Section 4.3 (Email Delivery Risk and Notification Addresses).
(d) Notification Contents. Each Security Incident notification shall include, to the extent then known to Licensor: (i) a description of the nature of the Security Incident; (ii) the categories and approximate volume of Licensee Confidential Information or personal data affected; (iii) the likely consequences of the Security Incident; (iv) the measures taken or proposed to be taken to address the Security Incident and mitigate its possible adverse effects; and (v) the name and contact details of Licensor’s data protection contact or other point of contact.
(e) Regulatory Reporting Independent of Licensor’s Notification. Licensee acknowledges that Licensee may have independent regulatory obligations to report Security Incidents to data protection authorities, regulators, or affected individuals. Licensor’s notification under this Section 14.4 is provided to enable Licensee to comply with such regulatory obligations and is independent of any separate regulatory notification obligations Licensor may have to data protection authorities under applicable law.
14.5 Cooperation with Licensee Security Reviews.
(a) First Questionnaire Per 12-Month Period. Licensor shall reasonably cooperate with Licensee’s pre-contract and periodic vendor security reviews by providing reasonable responses to one (1) security questionnaire submitted by Licensee in any twelve (12)-month period during the Term, and by providing access to Licensor’s compliance certifications under Section 14.6. Licensor shall not charge Licensee a Questionnaire Support Fee for Licensor’s labor on such first questionnaire. External Costs (as defined in subsection (c)) incurred by Licensor in responding to such first questionnaire shall be reimbursed by Licensee in accordance with subsection (c).
(b) Additional Questionnaires Subject to Fee. Licensee may request, and Licensor shall reasonably cooperate with, additional security questionnaire responses beyond the one (1) labor-free response per twelve (12)-month period under subsection (a), subject to the following conditions:
(i) Questionnaire Support Fee. Licensee shall pay Licensor a fee of one thousand U.S. dollars (US$1,000) per day, or any part thereof, that Licensor’s personnel are engaged in responding to such additional questionnaire (the “Questionnaire Support Fee”). Any partial day on which Licensor personnel engage with the additional questionnaire shall be considered a full day for purposes of fee calculation.
(ii) Pre-Engagement Estimate and Written Authorization. Prior to commencing work on any additional questionnaire under this subsection (b), Licensor shall provide Licensee, at the email address from which Licensee submitted the additional questionnaire request (or such other email address as Licensee has designated under Section 4.3), with a written estimate (the “Engagement Estimate”) setting forth: (1) the anticipated number of days required to complete the response; (2) the corresponding total estimated Questionnaire Support Fee; (3) a statement that the Questionnaire Support Fee will accrue at the rate set forth in subsection (b)(i) and that any partial day shall count as a full day; (4) the anticipated External Costs (as defined in subsection (c)), if any, that Licensor expects to incur, with a description of the nature of such costs; and (5) a statement that Licensor will not commence work until Licensee provides written authorization to proceed. Licensee’s authorization to proceed shall be effective only when delivered to Licensor in the form of a reply email from either (A) an officer of Licensee with apparent authority to authorize commercial commitments, or (B) an authorized member of Licensee’s procurement department who has been identified to Licensor in writing under Section 4.3, and that includes (1) the words “Authorized to proceed” or substantially similar unambiguous language, and (2) explicit acknowledgment of the Engagement Estimate, the Questionnaire Support Fee, and any anticipated External Costs. Licensor’s commencement of work shall be subject to Licensor’s email confirmation to Licensee acknowledging receipt of Licensee’s authorization. Email transmissions under this subsection (ii) are governed by Section 4.3 (Email Delivery Risk and Notification Addresses). If Licensor’s actual time engaged exceeds the Engagement Estimate by more than twenty percent (20%), Licensor shall promptly notify Licensee in writing with an updated estimate, and Licensee’s authorization shall be required for time exceeding the original Engagement Estimate. Time engaged within the Engagement Estimate plus twenty percent (20%) does not require additional authorization.
(iii) Invoicing and Payment. The Questionnaire Support Fee shall be invoiced post-delivery upon completion of Licensor’s response to the additional questionnaire, and shall be due and payable within thirty (30) days of receipt of Licensor’s invoice.
(iv) Late Payment Consequences. The Questionnaire Support Fee is subject to all of the late-payment consequences set forth in Section 4.2 (including without limitation interest, late fees, collection costs, cross-default, suspension of services, and termination of this Agreement).
(c) External Costs (All Questionnaire Engagements). In addition to the Questionnaire Support Fee under subsection (b)(i) (where applicable), Licensee shall reimburse Licensor for all actual, reasonable, and documented out-of-pocket costs and expenses incurred by Licensor with third parties in connection with responding to any security questionnaire submitted by Licensee under this Section 14.5 (whether the questionnaire is the first response under subsection (a) or an additional response under subsection (b)), including without limitation: (i) fees for third-party security assessments, audits, or attestations specifically requested or required by Licensee’s questionnaire; (ii) fees for expedited or supplemental audit reports, certifications, or compliance documentation that Licensor would not otherwise obtain in the ordinary course; (iii) outside counsel fees incurred by Licensor for legal review or response to questionnaire content; (iv) translation services where required to respond in a language other than English; and (v) any other reasonable third-party costs directly attributable to Licensor’s response to the questionnaire (collectively, “External Costs”). External Costs shall be invoiced at Licensor’s actual documented cost without markup. Licensor shall provide Licensee with reasonable supporting documentation (such as invoices from third-party providers) for External Costs upon Licensee’s written request. Where Licensor anticipates incurring External Costs in connection with any questionnaire response (including the first response under subsection (a)), Licensor shall, prior to incurring such External Costs, provide Licensee with a written estimate of the anticipated External Costs and a description of the nature of such costs. Where the anticipated External Costs exceed two thousand five hundred U.S. dollars (US$2,500), Licensee’s written authorization (in accordance with the authorization mechanism set forth in subsection (b)(ii), applied to External Costs in the same manner with such modifications as the context reasonably requires) shall be required before Licensor incurs such External Costs. Licensor shall not incur any External Cost in excess of the amount authorized by Licensee without obtaining Licensee’s additional written authorization in advance, except that External Costs may exceed the authorized amount by up to twenty percent (20%) without additional authorization. External Costs shall be invoiced post-delivery and shall be due and payable within thirty (30) days of receipt of Licensor’s invoice. External Costs are subject to all of the late-payment consequences set forth in Section 4.2.
(d) Reasonableness of Fees. The parties acknowledge and agree that the Questionnaire Support Fee and the pass-through of External Costs reflect a reasonable allocation of the costs and resources required to respond to security questionnaires beyond the one (1) labor-free response per twelve (12)-month period, including without limitation Licensor personnel time, security and compliance team engagement, administrative overhead, and Licensor’s actual third-party costs. The Questionnaire Support Fee is not a penalty.
14.6 Audit Reports and Sub-Processor List Access. Licensor shall provide copies of its current SOC 2 Type II report, ISO 27001 certificate, and current Sub-Processor list to Licensee upon Licensee’s written request, subject to the following conditions: (a) Licensee shall not be entitled to make more than one such request in any twelve (12)-month period; (b) Licensee shall execute Licensor’s standard non-disclosure agreement (or another non-disclosure agreement acceptable to Licensor) prior to receipt of such reports or list; (c) Licensee shall be an active, paying client in good standing at the time of the request, meaning (i) this Agreement is in full force and effect (and not in expired status, including without limitation Imminent Renewal Grace Period status), (ii) Licensee is current on all License Fees and other amounts owed to Licensor, and (iii) Licensee is not in any uncured Payment Default or any other material breach of this Agreement; and (d) Licensee shall use such reports and list solely for purposes of verifying Licensor’s compliance with this Agreement and Licensee’s own regulatory obligations, and shall not disclose such reports or list to any third party except to Licensee’s officers, employees, contractors, and professional advisors with a need to know and who are bound by confidentiality obligations consistent with those of the executed non-disclosure agreement.
15. ANTI-CORRUPTION
15.1 Compliance with Anti-Corruption Laws. Each party shall comply with all applicable anti-corruption and anti-bribery laws in connection with this Agreement, including without limitation the U.S. Foreign Corrupt Practices Act, the UK Bribery Act 2010, the Brazilian Clean Companies Act, the Indian Prevention of Corruption Act, and any other applicable anti-corruption or anti-bribery law of competent jurisdiction (collectively, “Anti-Corruption Laws”).
15.2 No Improper Payments. Neither party shall, directly or indirectly, offer, give, promise, authorize, request, accept, or receive any payment, gift, hospitality, favor, or other thing of value (whether in cash or in kind) to or from any government official, political party, candidate for political office, or any private individual or entity, where the purpose or effect of such offer, gift, promise, authorization, request, acceptance, or receipt is to improperly influence any act or decision, secure any improper advantage, or otherwise violate any Anti-Corruption Law.
15.3 Licensee Representations and Warranties. Without limiting Section 15.1, Licensee specifically represents, warrants, and covenants that, in connection with this Agreement, the Licensed Software, and Licensee’s commercial relationship with Licensor: (a) Licensee has not made and will not make any improper payment in violation of any Anti-Corruption Law; (b) Licensee has and will continue to maintain reasonable internal controls designed to prevent violations of Anti-Corruption Laws by Licensee, its personnel, and its agents; (c) no government official or politically exposed person holds a beneficial ownership interest in Licensee that has not been disclosed to Licensor in writing prior to the Effective Date; and (d) Licensee will not engage in any conduct in connection with this Agreement that would cause Licensor to be in violation of any Anti-Corruption Law.
15.4 Notification Obligation. Each party shall promptly notify the other party in writing if it becomes aware of any actual or threatened violation of Anti-Corruption Laws in connection with this Agreement.
15.5 Right to Terminate. Notwithstanding any other provision of this Agreement, Licensor may terminate this Agreement immediately upon written notice to Licensee in the event of any actual or reasonably suspected breach by Licensee of this Section 15, in addition to any other rights and remedies available to Licensor. Termination under this Section 15.5 is without prejudice to Licensor’s right to recover all amounts owed to Licensor under this Agreement, including without limitation accelerated multi-year installments under Section 9.2(d).
EXHIBIT A — SUPPORT AND MAINTENANCE
This Exhibit A is incorporated into the License and Services Agreement by Section 5.5 (Support and Maintenance) and forms an integral part of this Agreement.
Standard maintenance and support services including technical support, bug fixes, issue correction, and maintenance updates to the Licensed Software shall be available to Licensee during normal Licensor business hours, provided that Licensee has a valid maintenance agreement in place with Licensor for the applicable software.
Licensor will respond to any requests for technical support made in the manner set forth below, and use diligent efforts to provide a bug fix or workaround for any failure of the Licensed Software to operate in accordance with the Documentation.
Licensor business hours are 4 a.m. – 4 p.m. US Eastern Time, Monday through Friday.
Service Level Agreements
Licensor shall respond to requests for support according to the schedule outlined below:
Issue Classification|Acknowledgment|Provide Plan for Issue Correction or Workaround
Priority Issues|4 Business Hours|24 Business Hours
Secondary Issues|1 Business Day|5 Business Days
Minor Issues|2 Business Days|Next Software Release
Issues will be classified according to the following definitions:
(i) Priority Issues. Issues that render the Licensed Software inoperative; significantly impact, degrade, or restrict the performance, functionality, reliability, or use of the Licensed Software; or result in a lack of functionality or intermittent failure of the Licensed Software. Licensor shall escalate all Priority Issues to Licensor’s senior management team for resolution. Licensor will provide a response by a qualified member of its staff to begin to diagnose and to correct a Priority Issue as soon as possible but in any event a response will be provided within four (4) business hours of notification by Licensee. If Licensee does not receive a response within four (4) business hours of notification, Licensee can escalate to [email protected]. Licensor will use commercially reasonable efforts to resolve Priority Issues within twenty-four (24) hours of receiving the issue notification from Licensee. For any issue not resolved within that timeframe, Licensor will continue to use commercially reasonable efforts to resolve Priority Issues until resolved. Once Licensor implements an acceptable workaround, the severity classification will drop to a Secondary Issue until Licensor provides a permanent resolution to the issue.
(ii) Secondary Issues. Issues that impact, degrade, or restrict the performance, functionality, reliability, or use of the Licensed Software in a non-material manner; impact, degrade, or restrict the performance, functionality, reliability, or use of one or more of the major functions or features of the Licensed Software in a non-material manner.
(iii) Minor Issues. Issues that are cosmetic in nature, or enhancement requests.
Incident Reporting
Support tickets will be closed once mutually agreed to by Licensor and Licensee.
Request for Enhancements
Licensor welcomes Licensee input regarding improvements and enhancements to its product and will review this input on an ongoing basis to determine the viability and opportunity for incorporating this feedback into its product development cycle. As part of this process, Licensor will periodically publish the complete list of open enhancements and solicit Licensee feedback regarding prioritization and functional clarity.
Supported Integrations
Licensor supports integration of the Licensed Software with a variety of enterprise tools and systems, including but not limited to vulnerability and security management platforms, IT service management (ITSM) and ticketing systems, virtualization and hypervisor environments, cloud infrastructure providers, directory services, logging frameworks, and monitoring protocols. These integrations provide enhanced functionality and seamless interoperability within Licensee’s existing technology environment. Specific configuration requirements or additional professional services for complex integrations are available upon approved request.
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