CRAVE.IO MASTER END USER LICENSE AND SUPPORT AGREEMENT
This Master End User License and Support Agreement (this “Agreement”) is entered into as of the Effective Date by and between Crave.io Inc., a Delaware corporation (“Vendor” or “Crave”) with a principal place of business at 3467 Notre Dame Drive, Santa Clara, CA 95051, and Customer.
In consideration of the mutual covenants, terms, and conditions set forth below, the adequacy of which consideration is hereby accepted and acknowledged, the parties agree as set forth below:
“Customer” means the entity identified as the “Customer” on an Order Form that references this Agreement.
“Custom Scripts” means custom script files developed specifically by Vendor for Customer as part of the Professional Services provided hereunder for the purpose of compiling and packaging software. For example, Custom Scripts may include make files, shell scripts, docker files, and bazel files developed pursuant to a Statement of Work.
“Documentation” means the product documentation delivered by Vendor to Customer, as may be updated from time to time.
“Effective Date” means the Order Form Date set forth on an Order Form that references this Agreement.
“License Term” means the time period specified in the applicable Order Form for Customer’s licensed use of the Software.
“Maintenance Services” means the maintenance and support services purchased by Customer pursuant to an Order Form and provided by Vendor in accordance with Crave’s Standard Maintenance and Support offering.
“Order Form” means an ordering document governed by this Agreement that has been executed by Vendor and Customer and which provides for access to the Software, the delivery of Professional Services and/or the provision of Maintenance Services.
“Prior Inventions” means any of Vendor’s proprietary materials or technology that existed prior to the Effective Date or that is developed by or for Vendor outside the scope of this Agreement, to the extent that such materials or technology are incorporated into any Custom Scripts. Prior Inventions shall in no event include any Software.
“Professional Services” means fee-based setup, implementation, configuration, consulting, training and other services (other than Maintenance Services) that Vendor provides pursuant to an Order Form and/or SOW.
“Services” means the Professional Services and/or Maintenance Services purchased by Customer pursuant to an Order Form.
“Software” means the Vendor proprietary software product(s) indicated on an Order Form that will be licensed to Customer under this Agreement, excluding any open source licensed software. Software includes, without limitation, the proprietary software platform developed by or for Vendor which can be used to, among other things, (a) accelerate software compilation and (b) orchestrate the management of servers (a build farm) used for software compilation by automating the creation, deletion, configuration and installation of these servers.
“Statement of Work” or “SOW” means a document that accompanies an Order Form which details the Professional Services purchased by Customer under such Order Form.
2. LICENSES & DELIVERY
2.1. License. During the License Term and subject to the terms and conditions of this Agreement and the applicable Order Form, Vendor hereby grants Customer a nonexclusive license to reproduce and use one copy of the Software, in object code form, during the Term, provided that (a) Customer may not utilize more than the number of user accounts licensed to Customer under the applicable Order Form (the “Maximum Number of Authorized Users”), and (b) Customer complies with the restrictions set forth in Section 2.2 below. Customer may increase the Maximum Number of Authorized Users by entering into additional Order Forms with Vendor, subject to the additional per-user fees set forth in such Order Forms.
2.2. Restrictions on Software Rights. Copies of the Software created or transferred pursuant to this Agreement are licensed, not sold, and Customer receives no title to or ownership of any copy or of the Software itself. Furthermore, Customer receives no rights to the Software other than those specifically granted in Section 2.1 above. Without limiting the generality of the foregoing, Customer shall not: (a) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the Software; (b) use the Software for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Software; or (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the Software’s source code. Unless otherwise specified in an Order Form, (i) each user will be assigned a unique user account for access to and use of the Software; and (ii) user accounts are intended for use by the designated users only and cannot be shared. Customer agrees to provide accurate, current and complete account and user information. Customer is responsible for ensuring the security and confidentiality of all user accounts assigned to Customer and Customer’s representatives.
2.3. Documentation: Customer may reproduce the Documentation as reasonably necessary to support its internal use of the Software.
2.4. Delivery. Vendor shall provide the Software and Documentation to Customer, through a reasonable system of electronic download, within 7 days of the start of the License Term.
3. MAINTENANCE SERVICES; PROFESSIONAL SERVICES
3.1. Maintenance Services. During each License Term, Vendor shall maintain the Software in accordance with Crave’s Standard Maintenance and Support offering. During each License Term, Vendor shall provide Customer with copies of all new versions, updates, or upgrades of the Software, in object code format (collectively, “Upgrades”), without additional charge, promptly after commercial release. Upon delivery to Customer, each Upgrade will constitute an element of the Software and will thereafter be subject to this Agreement’s terms regarding Software, including without limitation license, warranty, and indemnity terms. “Upgrades” do not include new products, packages, modules or other new functionality which is substantially different from the existing feature set of the Software licensed to Customer.
3.2. Professional Services. Vendor will perform the Professional Services set forth in an Order Form and/or SOW, which shall include and/or specify a description of the Professional Services to be provided to Customer and the applicable fees and payment terms. If either Customer or Vendor request a change in the scope of Professional Services, any agreed-upon changes, including changes in fees and expenses, will not be binding against either Party unless set forth in a writing executed by the Parties (each, a “Change Order”).
3.3. Customer Cooperation; License. Customer acknowledges that Vendor’s ability to timely deliver the Services is dependent upon Customer’s ongoing cooperation and assistance (including, if requested by Vendor, (i) Customer’s use of a particular version of the Software and (ii) providing Vendor access to Customer’s infrastructure using a secure mechanism such as a VPN). Accordingly, Customer will supply to Vendor, on a timely basis, all information, data, materials, and assistance reasonably necessary for Vendor to perform the Services (collectively, “Customer Property”). Accordingly, Customer hereby grants to Vendor a non-exclusive, worldwide, sublicensable, license during the Term to copy, distribute, modify and otherwise use the Customer Property solely for the purpose of performing the Services. Vendor’s period of performance shall be equitably extended to account for any delays resulting from Customer’s failure to fully comply with the foregoing.
3.4. Staffing. Vendor shall be responsible for staffing decisions with respect to employees or contractors utilized in the performance of any Services under this Agreement, and shall have the right at any time to delegate, subcontract, remove or replace any of its personnel or contractors assigned to perform any Services. Vendor will be responsible for the acts or omissions of its employee and contractor personnel and any delays caused by the reassignment or replacement thereof.
3.5. Expense Reimbursement. Customer will reimburse Vendor for reasonable travel and other expenses incurred in connection with performing the Services, provided that Customer approves such expenses before they are incurred.
4. PAYMENTS; REPORTING
4.1. Fees; Payment Terms. Customer shall pay to Vendor the fees set forth in applicable Order Form (collectively, the “Fees”). Payment obligations are non-cancelable and Fees paid are non-refundable unless this Agreement or an applicable Order Form is terminated by Customer for cause pursuant to Section 11.2, in which case any prepaid, unearned Fees for the terminated portion of the License Term will be refunded to Customer. All amounts payable to Vendor under this Agreement shall be paid in United States dollars and shall be due thirty (30) days from the date of invoice. Overdue Fees shall accrue late interest charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
4.2. Taxes. Customer is solely responsible for the payment of all taxes, assessments, tariffs, duties, or other fees imposed, assessed, or collected by or under the authority of any governmental body (collectively, “Taxes”) arising from the Software license granted to Customer and Vendor’s provision of the Services hereunder, except any taxes assessed upon Vendor’s net income. If Vendor is required to directly pay Taxes related to Customer’s use or receipt of any Software license or Services, Customer agrees to promptly reimburse Vendor for any amounts paid by Vendor. All amounts payable to Vendor under this Agreement shall be without set-off and without deduction of any Taxes.
5. IP & FEEDBACK
5.1. Vendor Property. Vendor shall retain all right, title and interest in and to the Documentation, Software and Prior Inventions (“Vendor Property”), including without limitation Upgrades, except to the extent of the limited licenses specifically set forth in Sections 2.1 (License), 2.3 (Documentation) and 5.2 (Customer Property). Customer shall cooperate with Vendor in good faith to the extent necessary for Vendor to arrange or obtain the assignment to, and registration on behalf of, Vendor of all intellectual property rights in any design changes, improvements, enhancements, derivative works, or modifications to any Vendor Property.
5.2. Customer Property. Customer shall retain all right, title and interest in and to the Customer Property. Vendor hereby assigns to Customer all right, title and interest in and to the Custom Scripts, except for any Vendor Property included therein. To the extent that any Prior Inventions are incorporated into any Custom Scripts, Vendor hereby grants to Customer a non-exclusive, worldwide, irrevocable, fully-paid, royalty-free, perpetual license to use, reproduce, distribute, publicly perform and publicly display such Prior Inventions solely in connection with the exploitation of such Custom Scripts.
5.3. Feedback. Customer hereby grants Vendor a perpetual, irrevocable, worldwide license to use any Feedback (as defined below) that Customer communicates to Vendor during the Term, without compensation, without any obligation to report on such use, and without any other restriction. Vendor’s rights granted in the previous sentence include, without limitation, the right to exploit Feedback in any and every way, as well as the right to grant sublicenses. Notwithstanding the provisions of Section 6 (Confidential Information) below, Feedback will not be considered Customer’s Confidential Information. “Feedback” refers to any suggestion or idea for modifying any of Vendor’s products or services, including without limitation all intellectual property rights in any such suggestion or idea.
6. CONFIDENTIAL INFORMATION
6.1. Confidential Information Defined. “Confidential Information” refers to the following information that one party to this Agreement (“Discloser”) discloses to the other (“Recipient”): (a) any document Discloser marks “Confidential”; (b) any information Discloser orally designates as “Confidential” at the time of disclosure; (c) the non-public features and functions of the Software, for which Vendor is Discloser; and (d) any other nonpublic, sensitive information Recipient should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Recipient’s possession at the time of disclosure; (ii) is independently developed by Recipient without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Recipient’s improper action or inaction; or (iv) is approved for release in writing by Discloser. Recipient is on notice that the Confidential Information may include Discloser’s valuable trade secrets.
6.2. Nondisclosure. Recipient shall not use Confidential Information for any purpose other than to facilitate the transactions contemplated by this Agreement (the “Purpose”). Recipient: (a) shall not disclose Confidential Information to any employee, contractor or agent of Recipient unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Recipient with terms no less restrictive than those of this Article 6; and (b) shall not disclose Confidential Information to any other third party without Discloser’s prior written consent. Without limiting the generality of the foregoing, Recipient shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Recipient shall promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient’s attention. Notwithstanding the foregoing, Recipient may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Recipient shall give Discloser prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest such required disclosure, at Discloser’s expense.
6.3. Residuals. Notwithstanding anything herein to the contrary, Discloser acknowledges that Recipient may now have, or in the future may develop or receive, information that is the same as, or similar to, Confidential Information received from Discloser hereunder, without having breached this Agreement. Nothing in this Agreement (a) prevents Recipient from using, for any purpose and without compensating Discloser, Confidential Information retained in the unaided memory of Recipient’s personnel who have had access to Confidential Information, or (b) obligates Recipient to restrict the scope of employment of the Receiving Party’s personnel; provided, however, that this Section 6.3 does not create a license under any copyright or patent of the Disclosing Party.
6.4. Injunction. Recipient agrees that breach of this Article 6 would cause Discloser irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Discloser will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
6.5. Termination & Return. The obligations of Section 6.2 above (Nondisclosure) will terminate five years after the termination of this Agreement; provided that such obligations related to Confidential Information constituting Discloser’s trade secrets shall continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, Recipient shall return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof.
6.6. Retention of Rights. Except as expressly set forth in Sections 2.1 and 5, this Agreement does not transfer ownership of Confidential Information or grant a license thereto. Discloser will retain all right, title, and interest in and to all of its Confidential Information.
6.7. Usage Information. Notwithstanding anything herein to the contrary, Vendor may use data concerning Customer’s use and Customer’s personnel’s use of the Software (“Usage Information”), including but not limited to compiling statistical and performance information related to the operation of the Software and improving the Software and Vendor’s other products and services. Customer agrees that Vendor may make such information publicly available, provided that (i) such information does not incorporate any Customer Property and (ii) such use does not identify Customer or Customer’s personnel either directly or indirectly. Vendor retains all intellectual property rights in the Usage Information.
7. SOFTWARE AUDIT
During the Term of this Agreement and for twelve (12) months thereafter, Vendor may audit Customer’s use of the Software on 7 days’ advance written notice. Customer shall cooperate with the audit, including by providing access to any books, computers, records, or other information that relate or may relate to use of the Software, subject to Customer’s policies on protection of its intellectual property, confidential information, data privacy and information security. Such audit shall not unreasonably interfere with Customer’s business activities or compliance with applicable laws, regulations or policies. If Vendor discovers unauthorized use, reproduction, distribution, or other exploitation of the Software, in excess of 5% of the number of permitted users or 5% of the fees that would have applied to authorized exploitation, Customer shall reimburse Vendor for the reasonable cost of the audit, or of the next audit in case of discovery without an audit, in addition paying the fees that should have been paid for such excess users at the same per user price as the authorized users, and in addition to such other rights and remedies as Vendor may have. Vendor may not conduct an audit more than once per year.
8. REPRESENTATIONS & WARRANTIES
8.1. From Vendor
(a) Performance. Vendor represents and warrants that the Software will perform materially as described in its Documentation. In addition, the Services will be performed in a professional and workmanlike manner.
(b) IP Rights in the Software. Subject to the next sentence, Vendor represents and warrants that it is the owner of the Software and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. Vendor’s representations and warranties in the preceding sentence do not apply to the extent that the infringement arises out of any of the conditions listed in Subsections 9.1(a) through 9.1(e) below. In the event of a breach of the warranty in this Subsection 8.1(b), Vendor, at its own expense and its discretion, will promptly take the following actions: (i) secure for Customer the right to continue using the Software; (ii) replace or modify the Software to make it non-infringing, provided such modification or replacement will not materially degrade any functionality listed in the Documentation; or (iii) refund 8.33% of the licensee fee paid for the Software for every month remaining in the License Term, in which case Vendor may terminate any or all Customer licenses to the Software granted in this Agreement and require return or destruction of copies thereof. In conjunction with Customer’s right to terminate for breach where applicable and the provisions of Section 9.1 below (Indemnified Claims), the preceding sentence states Vendor’s sole obligation and liability, and Customer’s sole and exclusive remedy, for breach of the warranty in this Subsection 8.1(b) and for potential or actual intellectual property infringement by the Software.
8.2. From Both Parties. Each party represents and warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement.
8.3. Warranty Disclaimers. Except for the express warranties in Sections 8.1 and 8.2 above, VENDOR MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Vendor does not warrant that the Software will perform without error or that it will run without immaterial interruption. Vendor provides no warranty regarding, and will have no responsibility for, any claim arising out of: (a) a modification of the Software made by anyone other than Vendor, unless Vendor approves such modification in writing; or (b) use of the Software in combination with any hardware or software provided by a third party that is not authorized in the Documentation.
9.1. Indemnified Claims. Vendor shall defend and indemnify Customer and Customer’s Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of, related to, or alleging direct infringement of any patent, copyright, trade secret, or other intellectual property right by the Software. Vendor’s obligations set forth in this Section 8.1 do not apply to the extent that an Indemnified Claim arises out of: (a) Customer’s breach of this Agreement; (b) revisions to the Software made without Vendor’s written consent; (c) Customer’s failure to incorporate Upgrades that would have avoided the alleged infringement; (d) Vendor’s modification of Software in compliance with specifications provided by Customer; or (e) use of the Software in combination with hardware or software not provided by Vendor. In the event of an Indemnified Claim, Vendor may exercise the remedies in Subsections 8.1(b)(i) through 8.1(b)(iii) above, including without limitation its right therein to terminate licenses and require return of the Software. (As used in this Section 8, Customer’s “Associates” are its officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
9.2. Litigation & Additional Terms. Vendor’s obligations pursuant to Section 8.1 above will be excused to the extent that Customer’s or any of Customer’s Associates’ failure to provide prompt notice of the Indemnified Claim or reasonably to cooperate materially prejudices the defense. Vendor will control the defense of any Indemnified Claim, including appeals, negotiations, and any settlement or compromise thereof; provided Customer will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations.
10. LIMITATION OF LIABILITY
10.1. Dollar Cap. EXCEPT FOR BREACHES OF CONFIDENTIALITY, VENDOR’S INDEMNIFICATION OBLIGATIONS AND EITHER PARTY’S INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL EXCEED AN AMOUNT EQUAL TO THE FEES PAID OR PAYABLE BY CUSTOMER TO VENDOR IN THE 12 MONTHS PRIOR TO THE EVENTS GIVING RISE TO THE APPLICABLE CLAIM.
10.2. Exclusion of Consequential Damages. EXCEPT FOR BREACHES OF CONFIDENTIALITY, VENDOR’S INDEMNIFICATION OBLIGATIONS AND EITHER PARTY’S INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
10.3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS SECTION 10 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF VENDOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section 10, Vendor’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Vendor’s liability limits and other rights set forth in this Section 10 apply likewise to Vendor’s affiliates, licensors, suppliers, advertisers, subcontractors, agents, sponsors, directors, officers, employees, consultants, and other representatives.
11. Term & Termination
11.1. Term. This Agreement will remain in effect until terminated in accordance with this Agreement (the “Term”). Each Order Form shall remain in effect for the License Term set forth in the applicable Order Form. Thereafter, the License Term (including the Software licenses and the Maintenance Services purchased by Customer) will automatically renew for successive 12-month periods (each, a “Renewal Term”), unless either party refuses such renewal by providing written notice to the other party at least 30 days before the end of the current Term. Unless Vendor provides Customer with notice more than sixty (60) days prior to the start of any Renewal Term, it shall not increase the fees for the renewed licensed and Services by more than 7%
11.2. Termination for Cause. Either party may terminate this Agreement by providing written notice to the other party (i) if the other party is in material breach of this Agreement and has not cured such breach within thirty (30) days of receiving a notice of such breach from the non-breaching party (or immediately, if the breach is not curable); (ii) if the other party (x) has any action or proceedings under any bankruptcy or insolvency laws taken by or against it which have not been dismissed within sixty (60) days, (y) has effected a compulsory or voluntary liquidation or dissolution, or (z) has undergone the occurrence of any event analogous to those described in clauses (x) or (y) under the law of any jurisdiction; or (iii) if there are no Order Forms in effect for more than sixty (60) days, continuously.
11.3. Effects of Termination. Upon termination of this Agreement, Customer shall cease all use of the Software and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: Section 2.2 (Restrictions on Software Rights), Section 3.5 (Expense Reimbursement), Section 4 (Payments; Reporting), Section 5 (IP & Feedback), Section 6 (Confidential Information), Section 7 (Software Audit), Section 8.3 (Warranty Disclaimers), Section 9 (Indemnification), Section 10 (Limitation of Liability), Section 11.3 (Effects of Termination) and Section 12 (Miscellaneous).
12.1. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
12.2. Notices. Notices pursuant to this Agreement shall be sent to the addresses below, or to such others as either party may provide in writing. Such notices will be deemed received at such addresses upon the earlier of (a) actual receipt or (b) delivery in person, by fax with written confirmation of receipt, or by certified mail return receipt requested. For Vendor: 102 Persian Drive, Suite 101, Sunnyvale, CA 94089, Attn: Legal Department, with a copy to email@example.com. For Customer the physical mailing address for Customer set forth on the applicable Order Form.
12.3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
12.4. Assignment & Successors. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party; provided, however, a party may assign this Agreement in its entirety, together with all rights and obligations hereunder, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets related to this Agreement. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
12.5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
12.6. Publicity. Any press release developed by a Party regarding this Agreement shall be subject to the prior written consent of the other Party, which shall not be unreasonably withheld. Vendor may identify Customer as a user of the Software and/or Services by referencing Customer’s name and logo, provided that Vendor will cease making such references after receiving written notice from Customer to do so.
12.7. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
12.8. Government Restricted Rights. The Software is provided with Restricted Rights. Use, duplication, or disclosure for or by the government of the United States, including without limitation any of its agencies or instrumentalities, is subject to restrictions set forth, as applicable: (i) in subparagraphs (a) through (d) of the Commercial Computer Software-Restricted Rights clause at FAR 52.227-19; or (ii) in similar clauses in other federal regulations, including the NASA FAR supplement. The contractor or manufacturer is Vendor. Customer shall not remove or deface any restricted rights notice or other legal notice appearing in the Software or on any packaging or other media associated with the Software.
12.9. Bankruptcy Rights. The rights and licenses granted to Customer in Sections 2.1 (License) and 2.3 (Documentation) above (collectively, the “License Provisions”) are licenses to “intellectual property” rights, as defined in Section 365(n) of the United States Bankruptcy Code (11 U.S.C. Sections 101, et seq.). If Vendor is subject to any proceeding under the United States Bankruptcy Code, and Vendor as debtor in possession or its trustee in bankruptcy rejects this Agreement, Customer may, pursuant to 11 U.S.C. Section 365(n)(1) and (2), retain any and all rights granted to it under the License Provisions to the maximum extent permitted by law, provided it all pays all Fees applicable to such use. This Section 12.8 will not be construed to limit or restrict any right or remedy not set forth in this Section 12.8, including without limitation the right to retain any license or authority this Agreement grants pursuant to any provision other than the License Provisions.
12.10. Choice of Law & Jurisdiction: This Agreement will be governed solely by the internal laws of the State of California, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of San Francisco, California. This Section 12.9 governs all claims arising out of or related to this Agreement, including without limitation tort claims.
12.11. Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
12.12. Technology Export. Customer shall not: (a) permit any third party to access or use the Software in violation of any U.S. law or regulation; or (b) export the Software or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the Software in, or export it to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
12.13. Entire Agreement. This Agreement and all Order Forms, SOWs and Change Orders set forth the entire agreement of the parties and supersede all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications. In the event of any inconsistency between this Agreement and any Order Form, the terms of such Order Form shall prevail. Notwithstanding any language to the contrary therein, all terms and conditions stated in any Customer purchase order or in any other ordering documentation (excluding Order Forms, SOWs and Change Orders) are hereby rejected. Such terms will not form any part of this Agreement, and all such terms or conditions are null and void.
12.14. Execution in Counterparts. This Agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument.
12.15. Amendment. This Agreement may not be amended except through a written agreement by authorized representatives of each party.