Terms of Use

Trademarks

The following are trademarks of Waratek Limited and may not be used without written permission:

Waratek®, Replicode®, CloudVM™, Waratek AppSecurity for Java™, Waratek Locker™, ElastiCat™, Waratek Patch™, Waratek Secure™, Waratek Upgrade™,Waratek Enterprise™, Waratek ARMR™,Name Space Layout Randomization (NSLR)™, Waratek Security Rules Editor™, Java Virtual Container™, Secure Java Container™, BYOS™, jSleep™, JMotion™, Jirsh™, JMirror™ and JHybernate™

Governance

Waratek Ltd is an Irish private limited company based in Dublin, Ireland.

Waratek Americas, LLC is registered as a Limited Liability Company in Delaware, file # 6701514 with offices in Chicago.

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Updated: December 6, 2024

WARATEK LIMITED END USER AGENT LICENSE AGREEMENT

This EULA constitutes a binding legal agreement between Waratek Limited including itself and all its subsidiaries (“Waratek”) and the individual or entity agreeing to the terms herein (“you”) and sets forth the terms and conditions that govern your access to and/or use of the Licensed Software Agent. By entering into this EULA, you acknowledge that you are a licensed and/or authorized user under a Waratek subscription agreement (“Agreement”).

IF YOU DO NOT HAVE AN AGREEMENT IN PLACE WITH WARATEK AND ARE ENTERING INTO THIS EULA OR OTHERWISE DOWNLOADING THE LICENSED SOFTWARE AGENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS EULA. By accessing or using the LICENSED SOFTWARE AGENT, you acknowledge and agree that such access or use constitutes your full acceptance of the terms and conditions of this Agreement. If you do not agree to these terms, you must immediately cease any use of the LICENSED SOFTWARE AGENT. Continued use of the LICENSED SOFTWARE AGENT will be deemed as your ongoing acceptance of any modifications to the Agreement as provided by Waratek.ANY CHANGES, ADDITIONS OR DELETIONS BY YOU TO THIS EULA WILL NOT BE ACCEPTED AND WILL NOT BE A PART OF THIS EULA. IF YOU DO NOT AGREE TO THIS EULA, YOU MUST NOT ACCESS, DOWNLOAD, INSTALL AND/OR USE THE LICENSED SOFTWARE AGENT.

DEFINITIONS.

1.1 “Computer” means a virtual or physical device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions, including without limitation desktop computers, laptops, tablets, mobile devices, telecommunication devices, internet-connected devices, and hardware products capable of operating a wide variety of productivity and/or other software applications.

1.2 “Licensed Software Agent” means each version of Waratek’s proprietary computer application and/or program licensed hereunder, and software files and other computer information, proprietary scripting logic embedded within exported file formats, related explanatory written materials and files (“Documentation”) and any modified versions and copies of, and upgrades, new releases or versions provided to you by Waratek at any time to the extent not provided under separate terms.

1.3 “User(s)” mean an individual authorized to use the Licensed Software Agent and Documentation. User(s) may include without limitation employees, consultants, and/or contractors, and, if applicable, your customers.

1.4 “Partner(s)” means a company or individual that is authorized by Waratek to resell the Licensed Software Agent and accompanying Documentation.

GRANT OF LICENSE.

2.1 License Grant.

(a) Waratek hereby grants you a limited, non-exclusive, non-transferable license to access and/or use the Licensed Software Agent on any Computer that you own or control solely for your internal business operations and in accordance with the terms and conditions contained herein and for the timeframes designated by Waratek, in its sole and absolute discretion. The terms and conditions of this EULA will govern any content, materials, and/or services accessible from or within the Licensed Software Agent as well as upgrades provided by Waratek that replace or supplement the original Licensed Software Agent, unless such upgrade is accompanied by a separate end user license agreement. You may not transfer, redistribute or sublicense the Licensed Software Agent and, if you sell your Computer to a third party, you must remove the Licensed Software Agent from the Computer before doing so.

(b) The Licensed Software Agent is in use on a Computer when it is loaded into temporary memory or installed in permanent memory (hard drive, CD-ROM or other storage device). You agree to prevent and protect the Computer, the contents of the Licensed Software Agent and/or Documentation from unauthorized use or disclosure, with at least the same degree of care that you use to protect your own confidential and proprietary information, and in no event less than a reasonable degree of care under the circumstances. You agree that you will register this Licensed Software Agent only with a Partner or Waratek and that you will only install a Licensed Software Agent obtained directly from a Partner or Waratek.

(c) Certain components of the Licensed Software Agent may be subject to open-source software (“Open-Source Components”), which means any software license approved as open-source licenses by the Open Source Initiative or any substantially similar licenses, including without limitation any license that, as a condition of distribution of the software licensed under such license, requires that the distributor make the software available in source code format. Open-Source Components are provided "as is," and Waratek makes no warranties regarding the functionality or performance of these components. The Licensed Software Agent includes copies of the license applicable to the Open-Source Components. To the extent there is a conflict between the license terms covering the Open-Source Components and this EULA, the terms of such Open-Source Components licenses shall apply solely with respect to the Open-Source Components. To the extent the terms of the licenses applicable to Open-Source Components prohibit any of the restrictions in this EULA with respect to the Open-Source Component, such restrictions will not apply to such Open-Source Component.

LICENSE RESTRICTIONS; OBLIGATIONS.

3.1 License Restrictions; Use. You represent and warrant that your Users will also abide by the terms and conditions of this EULA and you acknowledge and agree that you shall be fully responsible for any Users breach of this EULA. You further agree to use commercially reasonable efforts to prevent unauthorized access to, and/or use of the Licensed Software Agent, and will notify Waratek immediately of any such unauthorized use. You shall use the Licensed Software Agent and/or Documentation solely in a manner that complies with all applicable laws in the jurisdictions in which you use the Licensed Software Agent and/or Documentation, including, but not limited to, applicable local, state, federal, and international laws relating to intellectual property, privacy and security.

3.2 Prohibited Conduct; Non-Transferability. Except as expressly permitted by this EULA and/or by Open-Source Components, you shall not, directly or indirectly, without the express, prior written consent of Waratek: (i) provide, make available to, or permit other individuals to use the Licensed Software Agent and/or Documentation, except under the terms listed above, either in whole or part; (ii) modify, translate, reverse engineer, decompile, disassemble, create derivative works, or otherwise attempt to derive the source code based upon the Licensed Software Agent and/or Documentation, except and only to the extent such activity is expressly permitted by applicable law; (iii) copy, reproduce, republish, upload, post, or transmit the Licensed Software Agent and/or Documentation (except for back-up or archival purposes, which will not be used for transfer, distribution, or sale); (iv) license, sell, rent, lease, transfer, sublicense, distribute, assign, or otherwise transfer rights to the Licensed Software Agent and/or Documentation (including without limitation, any software obtained through a web download, file or external USB) or authorize any portion of the Licensed Software Agent to be copied onto another individual or legal entity’s computer except as may be expressly permitted herein; (v) merge any Licensed Software Agent or any portion thereof with any other program and/or materials; (vi) use and/or access the Licensed Software Agent to provide service bureau and/or other computer hosting services to third parties; (vii) remove, obliterate, modify and/or obscure any copyright, trademark and/or any other proprietary notices or labels and/or confidentiality notice and/or legend appearing on and/or in any Licensed Software Agent provided or made available by Waratek hereunder; (viii) access the Licensed Software Agent and/or use the materials provided hereunder in order to build a similar product or competitive product; (ix) take any action that materially interrupts and/or interferes with, or that might reasonably have been expected to materially interrupt and/or interfere with, the Licensed Software Agent, Waratek’s business operations and/or its other customers; (x) license the Licensed Software Agent if you are a direct competitor of Waratek or for the purposes of monitoring the Licensed Software Agent’s availability, performance, or functionality or for any other benchmarking or competitive purposes; (xi) use the Licensed Software Agent to store or transmit infringing, libelous, unlawful, or tortious material or to store or transmit material in violation of third party rights, including privacy rights; (xii) use the Licensed Software Agent in a manner that results in excessive use or circumvention of the technical limitations or usage limits of the Licensed Software Agent; and/or (xiii) permit any other person and/or entity to engage in any of the foregoing conduct. Any breach of the foregoing shall immediately terminate your license to the Licensed Software Agent. All responsibility for obtaining such a license is yours, and Waratek shall not be responsible for your failure to do so. Waratek prohibits crawling, scraping, caching, and/or otherwise accessing any content on the Licensed Software Agent via automated means without Waratek’s express prior written consent.

3.3 Suspension. Notwithstanding anything herein to the contrary, Waratek reserves the right, without liability to you, to disable and/or suspend your access to and/or use of the Licensed Software Agent in the event (i) of any breach and/or anticipated breach of this EULA, (ii) you and/or you Users use of the Licensed Software Agent disrupts and/or poses a security risk to the Licensed Software Agent and/or any other customer, may harm Waratek’s systems and/or any provider of any third-party services and/or may subject Waratek and/or any third-party to liability, (iii) you and/or you Users are using the Licensed Software Agent for fraudulent and/or illegal activities, and/or (iv) Waratek’s continued provision of the Licensed Software Agent to you and/or your Users is prohibited by applicable law.

INTELLECTUAL PROPERTY OWNERSHIP.

4.1 Ownership. THE LICENSED SOFTWARE AGENT IS LICENSED, NOT SOLD. The Licensed Software Agent and any authorized copies that you make are the intellectual property of and are owned and/or licensed by Waratek and its suppliers. The structure, organization, and source code of the Licensed Software Agent are the valuable trade secrets and confidential information of Waratek and its suppliers. The Licensed Software Agent is protected by law, including but not limited to the copyright laws of the United States and other countries, and by international treaty provisions. Except as expressly stated herein, this EULA does not grant you any intellectual property rights in the Licensed Software Agent. All rights not expressly granted are reserved by Waratek and its suppliers.

4.2 Waratek Trademarks. You may not delete, remove, hide, move or alter any trademark, logo, icon, image or text that represents the company name of Waratek and/or its licensors, any derivation thereof, or any icon, image, or text that is likely to be confused with the same. All representations of the Waratek name or mark or any of its licensors names or marks must remain as originally distributed regardless of the presence or absence of a trademark, copyright, or other intellectual property symbol or notice.

WARRANTY; LIMITATION OF LIABILITY.

5.1 No Warranty. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED SOFTWARE AGENT IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED SOFTWARE AGENT IS PROVIDED "AS IS" AND ON AN “AS AVAILABLE” BASIS WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND WARATEK EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND/OR THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE, AND/OR COURSE OF DEALING. WARATEK DOES NOT REPRESENT, WARRANT, AND/OR COVENANT THAT THE LICENSED SOFTWARE AGENT WILL BE AVAILABLE WITHOUT INTERRUPTION OR TOTALLY ERROR-FREE, OR THAT ALL ERRORS (INCLUDING, BUT NOT LIMITED TO, MINOR OR COSMETIC DEFECTS THAT DO NOT SIGNIFICANTLY AND ADVERSELY AFFECT FUNCTIONALITY OR FEATURES) CAN OR WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY WARATEK OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED SOFTWARE AGENT PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.

5.2 Limitation of Liability. WARATEK’S TOTAL AND CUMULATIVE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF AND/OR IN CONNECTION WITH THIS EULA SHALL IN NO EVENT EXCEED ONE HUNDRED DOLLARS ($100.00). NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS EULA, IN NO EVENT WILL WARATEK BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, DATA, GOODWILL, AND BUSINESS) EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE REMEDIES SET FORTH HEREIN FAIL OF ITS ESSENTIAL PURPOSE.

INDEMNIFICATION.

You agree to indemnify, defend, and hold harmless Waratek and its officers, directors, employees, contractors and other representatives from and against any and all liabilities, losses, damages, costs, and other expenses (including reasonable attorneys’ fees) resulting from any claim or suit arising out of or related to (i) your and/or your Users’ breach of this EULA; and (ii) your and/or your Users’ use or misuse of the Licensed Software Agent; and/or (iii) your and/or your Users’ failure to comply with any law, rule or regulation. Waratek may reasonably participate in the defense of the claim, at its sole expense.

THIRD PARTY PROGRAMS/SERVICES.

You agree that Waratek may use third party programs and/or services to provide the Licensed Software Agent described herein (collectively, “Third Party Services/Programs”). To the extent the Licensed Software Agent is bundled with Third Party Services/Programs, such Third Party Services/Programs are governed by their own license terms, which may include open source or free software licenses, and such terms will prevail over this EULA as it relates to your use of the third-party programs. You acknowledge and agree that Waratek shall not be liable for its inability to access and/or retrieve accurate data from Third Party Services/Programs, systems and/or applications that it is dependent upon. Notwithstanding anything herein to the contrary, Waratek is not responsible for any unauthorized access to, alteration of, and/or the deletion, destruction, damage, loss and/or failure to store any data and/or other information that you and/or Users use in connection with the Licensed Software Agent.

GOVERNING LAW; ARBITRATION.

8.1 Arbitration. Except as otherwise expressly provided herein, any controversy or claim arising out of or relating to this EULA, or the breach thereof, shall be settled through binding arbitration in accordance with the Judicial Arbitration and Mediation Services (JAMS) International Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court of competent jurisdiction. Exclusive venue for such arbitration shall be Wilmington, Delaware. Notwithstanding the foregoing, neither party shall be precluded from seeking injunctive or similar equitable relief in the courts of any jurisdiction including, but not limited to, temporary restraining orders and preliminary injunctions, to protect its rights, including, without limitation, relating to intellectual property rights and/or confidential information.

8.2 Governing Law. Any disputes, claims, or controversies arising out of or relating to the intellectual property rights associated with this Agreement, shall be governed by and construed in accordance with the laws of Ireland, without regard to its conflicts of law principles. All other disputes, claims, or controversies arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, United States, without regard to its conflicts of law principles. You agree to submit to the exclusive jurisdiction of the state and federal courts located in Delaware for the resolution of any such disputes, claims, or controversies

OTHER AGREEMENTS.

Use of materials and/or services included in and/or accessed through the Licensed Software Agent may be subject to additional terms and conditions as may be provided by Waratek from time to time. Except as otherwise provided in this EULA, if any terms and/or conditions contained in this EULA conflict with any terms and/or conditions of any other agreement, the terms and/or conditions contained in this EULA shall govern and control solely with respect to the Licensed Software Agent described herein.

MISCELLANEOUS

10.1 Notices. Except as otherwise permitted in this EULA, notices under this EULA shall be in writing and shall be deemed to have been given (a) five (5) business days after mailing if sent by registered or certified U.S. mail, (b) when transmitted if sent by facsimile or electronic mail, provided that a copy of the notice is promptly sent by another means specified in this section, or (c) when delivered if delivered personally or sent by express courier service.

10.2 Survival; Severability. Any terms and/or conditions of this EULA which, by its nature, would survive termination of this EULA, will survive any such termination of this EULA. If any one or more of the provisions of this EULA are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this EULA will be unimpaired and will remain in full force and effect.

10.3 Headings; Recitals; Construction; No Waiver. Paragraph or Section headings are inserted for convenience of reference only and shall have no effect on interpretation or in the construction of this EULA. The recitals are hereby incorporated into the body of this EULA for all intents and purposes as if fully set forth herein. You agree that this EULA shall not be construed against any party by reason of the drafting or preparation thereof. No waiver by Waratek of any breach or default of this EULA shall be deemed to be a waiver of any preceding or subsequent breach or default.

10.4 Third Parties. Other than as expressly provided herein, this EULA does not create any rights for any person who is not a party to it, and no person not a party to this EULA may enforce any of its terms or rely on an exclusion or limitation contained in it. Waratek may, in its sole and absolute discretion, use subcontractors or any other third party to install the Licensed Software Agent.

10.5 Assignment. You shall have no right to assign or transfer your rights or obligations pursuant to this EULA without the prior written consent of Waratek. The terms and conditions of this EULA will inure to the benefit of, and shall be binding upon, each party’s successors and permitted assigns.

10.6 Export Restrictions. The Licensed Software Agent and/or Documentation delivered to you under this EULA are subject to U.S. export control laws and regulations and may also be subject to import and export laws of the jurisdiction in which it was obtained, if outside the U.S. You shall abide by all applicable export control laws, rules and regulations applicable to the Licensed Software Agent and/or Documentation. You agree that you will not export, re-export, or transfer the Licensed Software Agent and/or Documentation, in whole or in part, to any country, person, or entity subject to U.S. export restrictions. You specifically agree not to export, re-export, or transfer the Licensed Software Agent and/or Documentation (i) to any country to which the U.S. has embargoed or restricted the export of goods or services, or to any national of any such country, wherever located, who intends to transmit or transport the products back to such country; (ii) to any person or entity who you know or have reason to know will utilize the Licensed Software Agent or portion thereof in the design, development, production or use of nuclear, chemical or biological materials, facilities, or weapons; or (iii) to any person or entity who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government.

10.7 Attorney’s Fees. If Waratek brings an action against you to enforce its rights under this EULA, Waratek shall be entitled to recover costs and expenses, including, without limitation, attorneys’ fees and costs, incurred in connection with such action.

10.8 Interpretation. Unless the context of this EULA otherwise indicates: (a) words using the singular number should also include the plural and words using the plural number should also include the singular; (b) the terms “hereof,” “herein,” “hereby” and derivative or similar words refer to this entire EULA; (c) the terms “Article” or “Section” refer to the specified Article or Section of this EULA; (d) the word “including” will mean “including, without limitation;” and (e) when used in the context of a series of items the word “or” will be construed such that the series may include any of the items, all of the items, or any combination of the items.

10.9 Entire Agreement. This EULA constitutes the complete agreement and understanding between the parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings between the parties as it relates to the Licensed Software Agent.

Please Read Carefully

Updated: December 6, 2024

This End User Subscription Agreement (the “Agreement”) is made and entered into between Waratek Americas LLC (“Company”) and the customer that has entered into and executed an order form, quotation, sales order or other similar ordering document (“Order Form”) with Company or one of Company’s authorized resell partners (“Partners”) (“Customer”). This Agreement shall govern the products and services provided by Company to Customer as described herein and in the applicable Order Form(s) (such products and services are hereinafter collectively referred to as the “Services,” and shall include both SaaS Services and On-Prem Services, as hereinafter defined).

SIGNING THE ORDER FORM INDICATES THAT CUSTOMER HAS READ, UNDERSTANDS AND AGREES TO BE BOUND BY AND ACCEPTS THE TERMS AND CONDITIONS OF THIS AGREEMENT, AS WELL AS ALL OTHER APPLICABLE RULES OR POLICIES, TERMS AND CONDITIONS AND/OR AGREEMENTS THAT ARE AND/OR MAY BE ESTABLISHED BY COMPANY FROM TIME TO TIME AND INCORPORATED HEREIN BY REFERENCE. IF CUSTOMER IS AN INDIVIDUAL AGREEING TO THE TERMS OF THIS AGREEMENT ON BEHALF OF CUSTOMER’S LEGAL ENTITY, CUSTOMER REPRESENTS THAT SUCH INDIVIDUAL HAS THE LEGAL AUTHORITY TO BIND SUCH ENTITY. IF CUSTOMER DOES NOT AGREE WITH THIS AGREEMENT, CUSTOMER MUST NOT EXECUTE THE ORDER FORM OR ACCESS AND/OR USE THE SERVICES.

ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 16, CUSTOMER AGREES THAT DISPUTES BETWEEN CUSTOMER AND COMPANY WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION AND CUSTOMER WAIVES ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT AND/OR CLASS-WIDE ARBITRATION. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE PARTIES ARE WAIVING THEIR RIGHT TO A TRIAL BY JURY IN THE EVENT OF ARBITRATION.

1. Services

1.1 Services. Company provides “security-as-code” software products and services that enable customers to automate the remediation of code vulnerabilities and patch management and deploy software updates without the risk of vulnerability regression. Company and/or its third-party service providers shall provide the Services (which may include, without limitation, installation and/or set-up services, integration services, training and/or support services, and related services) as described in this Agreement and/or as set forth in duly executed Order Form(s) under this Agreement. Customer may elect to purchase either a license to Company’s software solution for installation on Customer’s premises (the “On-Prem Services”) and/or access to Company’s software-a-service solution (the “SaaS Services”), as set forth in the applicable Order Form. Neither party will have any obligation with respect to any draft Order Form unless and until it is executed by both parties. Except as otherwise provided herein, if any terms and/or conditions of this Agreement conflict with any terms and/or conditions of any Order Form, the terms and conditions set forth in the Order Form will control solely with respect to the Services covered under such Order Form.

1.2 Use of the Services. Customer is solely responsible for obtaining, maintaining, installing and supporting all ‘Internet’ access, computer hardware, software, telecommunications capabilities and other equipment and services (including responsibility for providing appropriate personal computers, tablets and/or mobile devices) needed for it and its authorized users to access and/or use the Services. Customer shall ensure that its network and systems comply with the relevant specifications provided by Company from time to time and shall provide Company with information as may be required by Company in order to provide the Services. While Company uses reasonable efforts to keep the Services accessible, the Services may be unavailable from time to time. Customer understands and agrees that there may be interruptions to the Services due to circumstances both within Company’s control (e.g., routine maintenance) and outside of Company’s control. The Services may be modified, updated, suspended and/or discontinued at any time without notice and/or liability.

1.3 Illegal Use. Customer shall not access, store, distribute or transmit any Viruses or any material during the course of its use of the Services that (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive, (ii) facilitates illegal activity, and/or (iii) causes damage or injury to any person or property. “Virus” shall mean any thing or device (including without limitation any software, code, file or program) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device, prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise) and/or adversely affect the user experience, including worms, ‘Trojan’ horses, viruses and other similar things or devices. Notwithstanding anything herein to the contrary, Company reserves the right, without liability to the Customer, to disable or suspend the Customer’s access to the Services in the event (a) of any breach or anticipated breach of this Agreement, (b) Customer’s and/or its users’ access to and/or use of the Services disrupts or poses a security risk to the Services and/or any other Customer, may harm Company’s systems and/or any provider of any third-party services and/or may subject Company and/or any third party to liability, (c) Customer and/or its authorized users are using the Services for fraudulent or illegal activities, and/or (d) Company’s continued provision of any of the Services to Customer and/or its users is prohibited by applicable law.

1.4 Customer Content. Customer is responsible for providing all Customer Content, criteria, and/or information and is responsible for the accuracy, quality, integrity and legality of such data and of the means by which authorized users access and use the Customer Content. Customer hereby grants Company and/or its third-party service providers a worldwide, non-exclusive right and license to reproduce, distribute and display the Customer Content as necessary to provide the Services. Customer represents and warrants that Customer owns all Customer Content or that Customer has permission from the rightful owner to use each of the elements of Customer Content, and that Customer has all rights necessary for Company to use the Customer Content in connection with the Services. Customer and its licensors retain title, all ownership rights, and all IP (as defined in Article 7), in and to the Customer Content and reserve all rights not expressly granted to Company hereunder. “Customer Content” means any elements of text, employee and/or client contact information, code, data, graphics, images, photos, designs, artwork, logos, trademarks, service marks, and other materials and/or content which Customer provides or uploads in connection with any Services. Customer Content excludes any content available in the public domain, and any content owned or licensed by Company, whether in connection with providing Services or otherwise. Customer agrees that Company may contact Customer’s users directly in connection with the provision of the Services. Notwithstanding anything herein to the contrary, Company may collect aggregated, anonymized data that cannot identify any person and that is derived from or created through the use of the Services by Customer and/or its users.

1.5 Data Security. Customer acknowledges and agrees it will abide by Company’s privacy notice at https://waratek.com/legal/privacy-policy/, as may be changed from time to time by Company in its sole and absolute discretion, and which such then-current version shall be incorporated herein by reference. In the event that Customer is purchasing access to Company’s SaaS Services, Customer acknowledges and agrees that Company utilizes third-party service providers to host and provide the Services and store Customer Content, and the protection of such data will be in accordance with such third party’s safeguards for the protection of the security, confidentiality, and integrity of Customer’s data. In the event that Customer is purchasing a license to Company’s On-Prem Services, Customer acknowledges and agrees that Customer is solely responsible for the protection of the security, confidentiality, and integrity of Customer Content. Whether Customer purchases the SaaS Services or On-Prem Services, Customer is responsible for properly configuring and using the Services and taking appropriate steps to maintain security, protection and backup of any and all Customer Content. Company is not responsible to Customer for unauthorized access to Customer Content or the unauthorized use of the Services unless such access is due to Company’s gross negligence or willful misconduct.

1.6 Unauthorized Access. Company is not responsible for any unauthorized access to, alteration of, and/or the deletion, destruction, damage, loss and/or failure to store any of, Customer’s data and/or other information that Customer and/or its users submits and/or uses in connection with the Services (including as a result of Customer’s and/or its users’ errors, acts or omissions).

1.7 Errors, Inaccuracies, Omissions and Performance. Occasionally there may be information on the Services that contain typographical errors, inaccuracies, and/or omissions that may relate to services, information, and data. Company reserves the right to (i) correct any errors, inaccuracies, and/or omission, and/or (ii) make changes to content, descriptions, service and/or other information without obligation to issue any notice of such changes, except as prohibited by law. Company also reserves the right to revise, suspend and/or terminate an event and/or promotion at any time without notice and without liability.

1.8 Agent. Company has developed and provides access to a software agent (the “Agent”) for use in connection with the Services. Subject to the terms and conditions of this Agreement, Company grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable right and license during the term of the applicable Order Form to use the Company Agent in the manner expressly provided by Company. Customer shall not use the Agent for any other purpose without Company’s prior written consent. Customer is solely responsible for configuring the Agent to connect to Company’s portal, and ensuring that Customer maintains the connection to Company’s portal. Company may update the Agent and related documentation from time to time and may add or remove functionality in its sole and absolute discretion without liability.

1.9 Third-Party Service Providers. Customer acknowledges and agrees that Company may use third-party service providers to provide the Services described herein.

2. Use; Maintenance; Prohibited Conduct

2.1 Right to Use SaaS Services. Subject to Customer’s compliance with the terms and conditions of this Agreement and the applicable Order Form, Company grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable right and license to access and/or use the Services during the term of the applicable Order Form solely for Customer’s internal business purposes and in accordance with the terms set forth herein and therein. Customer shall reproduce and include any copyright and other proprietary notices included in the Services, or any such other materials on all copies, in whole or in part, made thereof. For avoidance of doubt, Customer is solely and exclusively responsible for obtaining, installing, maintaining, and supporting, at its sole expense, such hardware, software, telecommunications capabilities, and other technology (specifically including responsibility for providing appropriate personal computers, tablets, ‘Internet’ browser software, telecommunications lines, and a current account with an ‘Internet’ service provider) as are necessary for it and its authorized users to access and use the Services as described herein.

2.2 License Grants to On-Prem Services. Subject to Customer’s compliance with the terms and conditions of this Agreement and the applicable Order Form, Company grants Customer a non-exclusive, non-transferable, non-sublicensable, revocable right and license to install, access and/or use Company’s proprietary software solution and/or program specified in each Order Form, in object code form only, during the applicable Order Form term, solely for Customer’s internal business purposes, and in accordance with the terms set forth herein and therein. Except for one copy solely for back-up purposes, Customer may possess only the number of copies of any software solution as has been expressly authorized by Company. The terms and conditions of this Agreement will govern any content, materials, and/or services accessible from or within the software solution as well as upgrades provided by Company that replace or supplement the original software solution, unless such upgrade is accompanied by a separate end user license agreement. Customer may not distribute or make the software solution available over a network where it could be used by multiple computers at the same time. Customer may not transfer, redistribute or sublicense the software solution and, Customer must remove the software solution from its systems before transferring its computer or systems to a third party. Customer agrees to prevent and protect the computer, the contents of the software solution and/or documentation from unauthorized use or disclosure, with at least the same degree of care that Customer uses to protect its own confidential and proprietary information, and in no event less than a reasonable degree of care under the circumstances. Customer agrees that Customer will register the software solution only with Company.

2.3 License Key. Customer acknowledges that the software solution contains a license key. Company will provide Customer with a license mechanism and a related key. This mechanism and key pair shall control the modules, functions and features as licensed in accordance and defined in the applicable Order Form. If Customer subsequently purchases additional modules and functions, Company shall provide Customer with additional license keys in order to update the mechanism and license pair. In the event Customer signs a click-charge subscription for production engines, the mechanism and key pair shall take control of such click-charge counter. Customer agrees not to acquire or use any license key or similar computer code for the software solution provided by another supplier than Company or one of its authorized partners/resellers or distributors.

2.4 Number of Licenses. Customer acknowledges and agrees that the Services may be accessed and/or licensed on a per agent basis, on a per event basis, on a per user basis, on a per seat basis, or under any other usage basis, and that no right or license of any kind is granted to Customer to install, execute, or otherwise use the Services in excess of the usage expressly set forth in the Order Form.

2.5 Open Source Software. Customer acknowledges that the Services may include open source software, the details and licenses of which may be included in the documentation like file provided to Customer in connection with the Services. If and solely to the extent a software component included with or in the Services is licensed under an open source software license that is incompatible with the terms and conditions of this Agreement, the terms and conditions of such open source software license will take priority over this Agreement solely with respect to such incompatibility and solely with respect to Customer’s use of such software component. For clarity, nothing in this Section 2.5 will (i) broaden Company’s representations or warranties or indemnification obligations to Customer; (ii) waive, limit, or disclaim any limitations of liability of Company set forth in this Agreement; or (iii) amend the scope of any license granted to Customer with respect to any proprietary portions of the Services.

2.6 Permitted Use. Customer represents and warrants that its users of the Services will abide by the terms and conditions of this Agreement and Order Forms and Customer acknowledges and agrees that it shall be fully liable for any user’s breach of the terms and conditions set forth in this Agreement and/or any Order Form. Customer will determine the access controls for its users and will be liable for activity occurring under Customer’s account, including without limitation compliance with the terms and conditions of this Agreement and applicable Order Form. For avoidance of doubt, Customer shall be fully responsible for, and Company shall have no liability for, any loss, cost, damage, error, fault, impairment or expense arising out of the acts and/or omissions of Customer, its users, or any third parties (including without limitation, any products or services provided to Customer by a third party that has an adverse effect on the Services or their functionality). Customer agrees to (i) maintain the accuracy and completeness of information provided to Company and agrees to provide any changes to Company within thirty (30) days after any such change, and (ii) use commercially reasonable efforts to prevent unauthorized access to, and/or use of the Services (including without limitation ensuring that user access credentials are stored securely and establishing and maintaining industry standard security policies), and notify Company immediately of any such unauthorized access to and/or use of the Services.

2.7 Updates; Support. So long as Customer is in compliance with the terms of this Agreement, Company agrees, solely during the term of the applicable Order Form(s), to: (i) make available to Customer those updates, upgrades, corrections, enhancements, improvements, modifications or other changes to the functionality, features and/or capabilities of the Services that Company makes generally commercially available to its other customers; and (ii) use commercially reasonable efforts to respond to Customer’s requests for support with respect to the Services. However, Company has no obligation under this Agreement to provide any service or support to Customer or any users outside of Company’s regular business hours. Company’s support services are described at https://www.waratek.com/legal, as updated by Company from time to time. Company reserves the sole and exclusive right to make updates, upgrades, corrections, enhancements, improvements, modifications, or other changes to the functionality, features and/or capabilities of the Services, and to, in its sole discretion, discontinue the provision of the Services and any support related thereto. Customer’s end of life policy with respect to the Services is described at https://www.waratek.com/legal, as updated by Company from time to time.

2.8 Prohibited Conduct. Except as expressly permitted hereunder, Customer shall not, directly or indirectly, without the express, prior written consent of Company (i) use or permit the use of, reproduce and/or otherwise duplicate, disclose, distribute, modify, encumber, time-share, license, sublicense, rent, lease, and/or transfer the Services and/or any portion thereof, and/or any of Customer’s rights thereto, (ii) merge any Services or any portion thereof with any other program and/or materials, (iii) reverse engineer, decompile, disassemble, extract, and/or otherwise derive and/or attempt to derive the source code of any Services and/or any other compiled software provided or made available by Company hereunder, (iv) adapt, translate, localize, port, or otherwise modify any Services and/or any other compiled software provided or made available by Company hereunder, (v) remove, obliterate, and/or cancel from view any copyright, trademark, and/or other proprietary and/or confidentiality notice and/or legend appearing on and/or in any materials provided or made available by Company hereunder, and/or fail to reproduce any such notice and/or legend on any copy made of any such materials, (vi) take any action that materially interrupts and/or interferes with, or that might reasonably have been expected to materially interrupt and/or interfere with, the Services, Company’s business operations and/or other customers, (vii) copy or imitate part or all of the design, layout and/or look and feel of the Services in any form or media and/or (viii) permit any other user, person and/or entity to engage in any of the foregoing conduct. In the event of Customer’s breach of Section 1.3 or Section 2.8, Company may terminate Customer’s access to the Services immediately without liability.

3. Fees

3.1 Fees. In consideration of the provision of the Services described herein and/or in any Order Form, Customer agrees to pay Company the fees set forth in the duly executed Order Form. Fees shall be subject to a 5% adjustment in Company’s sole discretion at the end of the term of each Order Form on sixty (60) days’ written notice to Customer. All fees due and payable by Customer to Company under this Agreement must be paid in full without any deduction, set-off, counterclaim or withholding of any kind unless required by law, and all payments are non-refundable. The fees reflected in such Order Form(s) shall be in U.S. dollars. All payments are further subject to any additional terms and conditions set forth in the Order Form. If Customer’s use of the Services exceeds the usage outlined in the applicable Order Form, then the parties shall negotiate revised pricing in good faith to align Customer’s fees with Customer’s actual usage of the Services. If Customer fails to negotiate revised pricing in good faith within thirty (30) days after notification of excess usage, Company may revise such pricing in its sole reasonable discretion.

3.2 Invoices. Unless otherwise set forth herein and/or set forth in an Order Form, each invoice shall be due and payable by Customer within thirty (30) days after Customer’s receipt of such invoice.

3.3 Payments. As mutually agreed by the parties, fees may be paid by check or may be deducted from a payment account designed by Customer. If fees are paid by a payment account, Customer authorizes Company and/or its third-party service provider to automatically charge the payment account for the fees in advance or as otherwise agreed to by the parties in writing. If Customer’s payment account on file is closed or the account information is changed, or if, for any reason, a charge is rejected by Customer’s payment account, Customer shall immediately update Customer’s payment account or supply a new payment account, as appropriate. If Customer is unable to update its payment account with appropriate information, then Company will send an invoice to Customer detailing the amount due. Customer must pay the amount due in full within ten (10) days after the date of the invoice. Upon Company’s request, Customer agrees to promptly complete and submit a payment account authorization form to Company, as applicable. Customer permanently and irrevocably waives any and all right to enact a 'chargeback' (that is, a disputed, reversed or contested charge with the applicable bank, credit card or charge card) against such payments for any reason whatsoever against Company.

3.4 Expenses. Customer shall promptly reimburse Company for any out-of-pocket expenses reasonably incurred in connection with the performance of the Services and/or the delivery, installation, support and/or configuration of any Services at Customer’s location and/or facilities.

3.5 Taxes. All fees due and payable under this Agreement and/or any Order Form are exclusive of applicable taxes, which will be added at the prevailing rate from time to time. Customer is responsible for all taxes, fees, duties, and charges, and any related penalties and interest, arising from the payment of any and all fees under this Agreement except for taxes based on Company’s net income and/or payroll taxes. Customer will indemnify, defend and hold harmless Company for all taxes imposed which may be attributable to the Services.

3.6 Out-of-Scope Services. In the event Customer requests any services that are outside the scope of Services described herein and/or in the applicable Order Form, then Customer shall submit such request in writing to Company. Thereafter, the parties shall memorialize any agreed upon changes in writing via amendment to this Agreement and/or applicable Order Form. Any such out-of-scope services shall be provided at Company’s then-current rates for such out-of-scope services and shall be due and payable in accordance with the terms and conditions set forth herein.

3.7 Late Payment. In the event that fees are not paid on a timely basis, including without limitation due to an invalid or expired credit card number, such unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. In addition, Company may, without liability to Customer, in addition to other available remedies, disable access to all or part of the Services if any fees are not paid within thirty (30) days of such fees first becoming due and payable under this Agreement. In the event of the foregoing, Company shall not be obligated to provide any or all of the Services until such fees are paid in full. Customer acknowledges and agrees that Company shall not be in breach of this Agreement or liable for failure to perform in the event Customer fails to make payments when due hereunder.

3.8 Invoice Dispute Process. If Customer receives an invoice which it reasonably believes, acting in good faith and with proper supporting evidence, specifies a charge which is not valid and properly due (“Disputed Charge”), then Customer shall notify Company in writing (“Dispute Notice”) within ten (10) days from the date such invoice is received to notify Company that it has a bona fide dispute in relation to the amount invoiced. For avoidance of doubt, disputed invoices do not relieve Customer of paying invoices in full on or before the date in which such payments are due. Customer shall specify reasonable details of the nature of the dispute in the Dispute Notice. The parties shall discuss the Disputed Charge within ten (10) days of the date of the Dispute Notice. In the event the Disputed Charge is not resolved within such time period, then the matter shall be escalated to an executive officer of each party. Such executives shall initially discuss the Disputed Charge within ten (10) days after receipt of notice and use commercially reasonable efforts to resolve the Disputed Charge within ten (10) days thereafter. If the dispute is not resolved within such time period, then either party may at any time thereafter submit such dispute to arbitration as set forth in Article 16.

3.9 Audit. During the term of this Agreement and for a period of one (1) year thereafter, Customer will maintain accurate and complete records and books of account, which will include, at a minimum, all documentation necessary to compute and verify the fees and the accuracy of all information reported to Company hereunder. At any time, upon no less than thirty (30) days’ written notice, Company and its auditors will have the right to examine Customer’s books and records related to the Services during normal business hours for the purpose of verifying Customer’s compliance with the terms and conditions of this Agreement and the correctness of all amounts paid or payable to Company under this Agreement. Any such audit shall be conducted at Company’s cost and expense. If such audit correctly reveals an underpayment, Customer will promptly pay Company the amount of underpayment plus any late payments owed pursuant to Section 3.7 hereof. In addition, if such underpayment is in excess of five percent (5%) of the amounts actually due to Company, Customer shall reimburse Company for the reasonable costs actually incurred by Company as a result of the audit.

4. Term

4.1 Term. This Agreement shall commence on the Effective Date and shall continue until otherwise terminated earlier in accordance with the terms and conditions of this Agreement.

4.2 Order Form Term. The term of each Order Form will commence on the date set forth in the Order Form and continue thereafter as set forth in such Order Form, unless otherwise terminated earlier in accordance with the terms and conditions of such Order Form and/or this Agreement.

5. Termination

5.1 Termination for Breach. If a party materially breaches this Agreement and/or any Order Form, and the defaulting party does not cure such breach within thirty (30) days after its receipt of written notice of material breach, the non-defaulting party may terminate this Agreement and/or the Order Form upon written notice to the defaulting party. Termination of this Agreement and/or any Order Form will be without prejudice to any other rights and remedies that the non-defaulting party may have under this Agreement, the Order Form and/or at law and/or in equity.

5.2 Termination for Convenience. Unless otherwise set forth in the applicable Order Form, neither party may terminate an Order Form for convenience prior to the end of the term of such Order Form.

5.3 Effect of Termination.

(a) In the event Customer terminates this Agreement and/or any Order Form pursuant to Section 5.1 (Termination for Breach), then upon termination, Customer will pay all outstanding fees, charges and expenses incurred through the effective date of termination.

(b) In the event Company terminates this Agreement and/or any Order Form pursuant to Section 5.1 (Termination for Breach), then upon termination, Customer will pay all outstanding fees, charges and expenses owed through the end of the then-current term of this Agreement and/or Order Form, as if the Agreement and/or such Order Form had not been terminated.

6. Confidentiality

6.1 Confidential Information. During the term of this Agreement, the parties may have access to certain information that is not generally known to others including any and all information relating to the party and its business including without limitation: its business, legal, and operational practices, financial, technical, commercial, marketing, competitive advantage and/or other information concerning the business and affairs, partnerships and potential partnerships, business model, fee structures, employees, funding opportunities, metrics, know-how, systems, procedures and techniques that has been or may hereafter be provided or shown to the other party, regardless of the form of the communication and the terms and conditions of this Agreement and Order Forms ("Confidential Information"). The party disclosing Confidential Information shall be referred to herein as the “Disclosing Party” and the party receiving Confidential Information shall be referred to herein as the “Receiving Party.”

6.2 Receiving Party Obligations. The Receiving Party agrees not to use or disclose the Confidential Information, and may disclose the Confidential Information only as necessary and appropriate to perform its obligations hereunder and to receive the benefit of the Services in accordance with this Agreement to its officers, directors, employees, agents, third-party service providers and subcontractors (and their employees) (“Representatives”) who have a need to know such Confidential Information solely in connection with this Agreement. The Receiving Party will cause such Representatives to comply with this Agreement and will assume full responsibility for any failure to comply with the terms of this Agreement. The Receiving Party will not transfer or disclose any Confidential Information to any third party without the Disclosing Party’s prior written consent and without such third party having a contractual obligation (consistent with this Article 6) to keep such Confidential Information confidential. The Receiving Party will not use any Confidential Information for any purpose other than to perform its obligations under this Agreement.

6.3 Exclusions. Confidential Information does not include information that: (i) is obtained by the Receiving Party from the public domain without breach of this Agreement and independently of the Receiving Party’s knowledge of any Confidential Information; (ii) was lawfully and demonstrably in the possession of the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; (iii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; and/or (iv) becomes known by the Receiving Party from a third party independently of the Receiving Party’s knowledge of the Confidential Information and is not subject to an obligation of confidentiality.

6.4 Legal Requirements. If the Receiving Party is requested or required to disclose any of the Disclosing Party’s Confidential Information under a subpoena, court order, statute, law, rule, regulation or other similar requirement (a "Legal Requirement"), the Receiving Party will, if lawfully permitted to do so, provide prompt notice of such Legal Requirement to the Disclosing Party so that the Disclosing Party may seek an appropriate protective order or other appropriate remedy or waive compliance with the provisions of this Agreement. If the Disclosing Party is not successful in obtaining a protective order or other appropriate remedy and the Receiving Party is legally compelled to disclose such Confidential Information, or if the Disclosing Party waives compliance with the provisions of this Agreement in writing, the Receiving Party may disclose, without liability hereunder, such Confidential Information solely to the extent necessary to comply with the Legal Requirement.

6.5 IP. The parties agree that ownership of any IP (as defined in Article 7) in any materials owned by the other party shall remain with that party, and nothing in this Agreement shall imply that any right or license in respect of such IP is being granted to the other party.

6.6 Disposition of Confidential Information on Termination or Expiration. Upon termination or expiration of this Agreement or upon the Disclosing Party’s written request, the Receiving Party will return to the Disclosing Party all copies of Confidential Information already in the Receiving Party’s possession or within its control. Alternatively, with Disclosing Party’s prior written consent, the Receiving Party may destroy such Confidential Information; provided that the Confidential Information is (i) destroyed in accordance with applicable law, rule or regulation and (ii) is rendered unreadable, undecipherable and otherwise incapable of reconstruction, in which case an officer of the Receiving Party will certify in writing to the Disclosing Party that all such Confidential Information has been so destroyed. The obligations with respect to Confidential Information, as set forth in this Article 6, shall continue in force and effect for a period of five (5) years after termination or expiration of this Agreement or, with respect to such portions of such Confidential Information that constitute trade secrets under applicable law, for so long as such trade secret status is maintained.

6.7 Remedy. Each party acknowledges that a breach of this Article 6 may result in irreparable and continuing damage to the Disclosing Party for which monetary damages may not be sufficient, and agrees that the Disclosing Party will be entitled to seek, in addition to its other rights and remedies hereunder or at law, injunctive or all other equitable relief, and such further relief as may be proper from a court of competent jurisdiction. This Article 6 shall survive the expiration or termination of this Agreement.

Ownership

7.1 The Services. Company retains all right, title, interest and ownership of, any and all IP and proprietary rights with respect to the Services, and any other materials, products, software, solutions, and/or applications provided or made available to Customer by Company hereunder. “IP” means all intellectual property including without limitation all patents, inventions, trademarks, service marks, trade names and trade dress, copyrights and copyrightable works, trade secrets, know-how, design rights and database rights. Except for the rights expressly granted to Customer in this Agreement, all such Services and other materials that are provided or made available, and all work product that is developed, under this Agreement, all modifications, compilations, and derivative works thereof, and all intellectual property and proprietary rights pertaining thereto, are and shall remain the property of Company and its respective licensors (and to the extent any rights of ownership in any such materials, works, or rights might, for any reason, otherwise vest in Customer, Customer hereby assigns such ownership rights to Company).

7.2 Usage Data. Company may monitor the usage of the Services and may collect and/or generate data and information relating to Customer’s and any user’s use of the Services (“Usage Data”). All Usage Data will be owned by Company and may be used for any lawful purpose, including to verify the accuracy of all fees paid or owed by Customer. Company may provide notices, alerts, or other messages to Customer or users based on the Usage Data.

7.3 Feedback. Customer may, from time to time, provide suggestions, comments or other feedback to Company with respect to the Services (“Feedback”). Notwithstanding anything herein to the contrary, Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Company. Customer shall, and hereby does, grant to Company a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose; provided that such license grant shall not be construed to relieve Company of any confidentiality obligations it may have hereunder with respect to Customer Confidential Information. Nothing in this Agreement will impair Company’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with, any products, software or technologies that Customer may develop, produce, market, or distribute.

7.4 AI Features. Certain components of the Services may utilize artificial intelligence (“AI”) technology to provide features and services, and Customer hereby agrees that: (a) Company and its licensors may use and store AI content that is processed by each of the AI features and services to maintain and provide the applicable AI feature or service (including development and improvement of such AI feature or service and its underlying technologies); (b) Company and it licensors may use and store AI content that is not personal data to develop and improve machine-learning and artificial-intelligence technologies; and (c) solely in connection with the development and improvement described in clauses (a) and (b), Company and its licensors may store such AI content outside the region where Customer is using such AI feature or service.

Warranties

8.1 Company Warranty. Company represents and warrants that (i) Company possesses full power and authority to enter into this Agreement; and (ii) the Services will perform materially in accordance with the applicable documentation. In the event that the Services fail to comply with the warranty set forth in subsection 8.1(ii), Customer’s sole and exclusive remedy, and Company’s sole and exclusive liability for any breach of the warranty, shall be for Company, at its option, to either modify the Services or provide a workaround solution to comply with the above warranty, within a commercially reasonable time.

8.2 Customer Warranty. Customer represents and warrants that (i) Customer will comply with all applicable local, state and federal laws in using the Services, (ii) Customer possesses full power and authority to enter into this Agreement; and (iii) it has undertaken an independent analysis to determine its needs and capabilities of Company Services.

8.3 Disclaimer.

(a) BY THEIR NATURE, THE SERVICES MAY CONTAIN ERRORS, BUGS, AND OTHER PROBLEMS THAT COULD CAUSE SYSTEM FAILURE. IN ADDITION, THE SERVICES MAY NOT HAVE ADEQUATE DOCUMENTATION, AND ANY DOCUMENTATION IN EXISTENCE MAY BE INACCURATE OR INCOMPLETE. COMPANY DOES NOT REPRESENT, WARRANT OR GUARANTEE THAT (A) THE SERVICES WILL BE 100% SECURE OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER APPLICATION, SOFTWARE, HARDWARE, SERVICE OR DATA; (B) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY DATA STORED USING SERVICES WILL BE ACCURATE, RELIABLE, OR SECURE; (D) ERRORS OR DEFECTS IN THE SERVICES WILL BE CORRECTED; (E) THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (F) THE SERVICES WILL DETECT, ALERT CUSTOMER TO, RESPOND TO, OR RESOLVE ANY GIVEN SECURITY THREAT OR BREACH. EXCEPT AS SET FORTH HEREIN, COMPANY PROVIDES THE SERVICES ON AN “AS-IS” BASIS WITHOUT WARRANTY OF ANY KIND, AND COMPANY MAKES NO WARRANTY REGARDING THE SERVICES, ANY RELATED DOCUMENTATION, OR THE USE OR OPERATION OF THE SERVICES, AND SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, AND NON-INFRINGEMENT.

(b) CERTAIN FEATURES AND FUNCTIONALITIES WITHIN THE SERVICES MAY ALLOW CUSTOMER AND ITS USERS TO INTERFACE OR INTERACT WITH, ACCESS AND/OR USE COMPATIBLE THIRD-PARTY SERVICES, PRODUCTS, TECHNOLOGY AND CONTENT (COLLECTIVELY, “THIRD-PARTY SERVICES”). COMPANY DOES NOT PROVIDE ANY ASPECT OF THE THIRD-PARTY SERVICES AND IS NOT RESPONSIBLE FOR ANY ERRORS, COMPATIBILITY ISSUES OR BUGS IN THE SERVICES OR THIRD-PARTY SERVICES CAUSED IN WHOLE OR IN PART BY THE THIRD-PARTY SERVICES OR ANY UPDATE OR UPGRADE THERETO. FURTHER, COMPANY DOES NOT WARRANT OR ENDORSE AND DOES NOT ASSUME AND WILL NOT HAVE ANY LIABILITY OR RESPONSIBILITY TO CUSTOMER OR ANY OTHER PERSON FOR ANY LOSS, LIABILITY, OR DAMAGES OF ANY KIND ARISING FROM OR RELATED TO ANY THIRD-PARTY SERVICES, EVEN IF SUCH THIRD-PARTY SERVICES ARE PURCHASED USING A COMPANY ORDER FORM. CUSTOMER IS SOLELY RESPONSIBLE FOR ENTERING INTO AGREEMENTS TO ACCESS AND USE THE THIRD-PARTY SERVICES, MAINTAIN THE THIRD-PARTY SERVICES AND OTHERWISE OBTAINING ANY ASSOCIATED LICENSES AND CONSENTS NECESSARY FOR CUSTOMER TO USE THE THIRD-PARTY SERVICES. THE THIRD-PARTY SERVICES’ TERMS WILL GOVERN THE RELATIONSHIP BETWEEN CUSTOMER AND THE PROVIDER OF SUCH THE THIRD-PARTY SERVICES, AND AS BETWEEN COMPANY AND CUSTOMER, CUSTOMER IS SOLELY RESPONSIBLE FOR COMPLYING THEREWITH. CUSTOMER ACKNOWLEDGES SOLE RESPONSIBILITY FOR AND ASSUMES ALL RISK ARISING FROM ITS USE OF ANY THIRD-PARTY SERVICES EVEN IF SUCH THIRD-PARTY SERVICES ARE PURCHASED THROUGH A COMPANY ORDER FORM.

9. Limitation of Liability

EXCEPT WITH RESPECT TO THE OBLIGATIONS SET FORTH IN SECTION 6 AND SECTION 10, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, DATA AND BUSINESS) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS SET FORTH HEREIN SHALL APPLY DESPITE ANY NEGLIGENCE, MISCONDUCT, ERRORS AND/OR OMISSIONS OF SUCH PARTY. COMPANY’S TOTAL AND CUMULATIVE LIABILITY FOR ANY DAMAGES ARISING OUT OF AND/OR IN CONNECTION WITH THIS AGREEMENT AND/OR ANY ORDER FORMS SHALL IN NO EVENT EXCEED THE FEES PAYABLE BY CUSTOMER TO COMPANY FOR THE SERVICES PROVIDED HEREUNDER THAT GAVE RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF SUCH CLAIM. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, COMPANY’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

10. Indemnification

10.1 Indemnification by Company. Company will indemnify, defend, and hold harmless Customer and its officers, directors, employees, and contractors (“Customer Indemnified Entities”) from and against any and all liabilities, losses, damages, costs, and other expenses (including reasonable attorneys’ fees) to the extent resulting from any claim or suit asserted by a third party against a Customer Indemnified Entity that the Services, as and in the form provided by Company, infringes such third party’s intellectual property rights; provided, however, that Company shall have no obligations under this Section 10.1 if and to the extent any such claim or suit, or any resulting liabilities, losses, damages, costs, or other expenses, are based on: (i) Company’s compliance with any explicit instructions or specifications provided by Customer; (ii) the modification of the Services by anyone other than Company; (iii) the combination of the Services with any product, software, or service not provided by Company; (iv) a Customer Indemnified Entity’s continued use of the Services after Company has provided the Customer Indemnified Entity with a new version or update to such Services that no longer infringes; (v) a Customer Indemnified Entity’s misuse of the Services (including any use outside of the express scope of the licenses granted hereunder); (vi) hardware or software applications of Customer (each of (i)-(vi) hereof, an “Excluded Claim”); or (vii) any open source software used or incorporated into the Services. Company’s obligations under this Section 10.1 are conditioned on: (a) Customer promptly notifying Company in writing of the applicable claim or suit; (b) Company being granted sole control of the defense and/or settlement thereof; and (c) the Customer Indemnified Entity furnishing to Company, on request, all relevant information available to such Customer Indemnified Entity and reasonable cooperation for such defense. The obligations provided in this Section 10.1 shall be the sole obligation of Company and the exclusive remedy of the Customer Indemnified Entities with respect to any infringement claims based on the Services. If Company believes that a Customer Indemnified Entity is, or may become, prohibited from continued use of any Services by reason of an actual or anticipated infringement claim or suit then, at Company’s option, Company will use its reasonable efforts to: (1) obtain for such Customer Indemnified Entity the right to continue to use the Services as permitted hereunder; or (2) replace or modify the Services so that they are no longer subject to such claim or suit. If the options described in clauses (1) and (2) above are not reasonably available to Company, then Company has the right to discontinue to provide such portion of Services that is the subject matter of the claim or suit, and the Customer Indemnified Entity’s license to such portion of the Services will immediately terminate.

10.2 Indemnification by Customer. Customer will indemnify, defend, and hold harmless Company and its officers, directors, employees, contractors and other representatives from and against any and all liabilities, losses, damages, costs, and other expenses (including reasonable attorneys’ fees) resulting from any claim or suit arising out of or related to (i) Customer’s breach of this Agreement; (ii) any use (except to the extent Company is obligated to indemnify Customer as provided in Section 10.1), or misuse of the Services by any Customer Indemnified Entity or any of their users; and/or (iii) any Excluded Claim. Company may reasonably participate in the defense of the claim, at its sole expense.

11. Independent Contractor

It is understood and agreed that the relationship of Company to Customer is and shall continue to be that of an independent contractor and neither Company nor any of Company’s employees shall be entitled to receive Customer employee benefits. Nothing in this Agreement will be construed to create an agency or employment relationship between Customer and Company for any purpose or create obligations of such party to third parties. As an independent contractor, Company agrees to be responsible for the payment of all taxes and withholdings specified by law, which may be due in regard to compensation paid by Customer.

12. Force Majeure

Notwithstanding anything herein to the contrary, neither party shall be liable or deemed to be in default for any delay or failure in performance hereunder to the extent resulting, directly or indirectly, from acts of God, acts of war, terrorism, or civil insurrection, strikes, walkouts, or other organized labor interruptions, telecommunications or utility interruptions or failures, fire, explosions, floods, or other natural disasters, any similar cause or any third party beyond the reasonable control of such party, and any delay or failure of the other party to fulfill its obligations hereunder (“Force Majeure Event”). In the event of a Force Majeure Event, the parties agree to meet and discuss how to resolve the issue. Either party may terminate this Agreement by giving the other party written notice if the other party fails to perform those obligations for thirty (30) days due to such Force Majeure Event. Notwithstanding the foregoing, a Force Majeure Event shall never excuse the failure to make a payment due under this Agreement and/or any Order Form, except to the extent that the Force Majeure Event physically interferes with the delivery of the payment. The party whose performance is affected shall use commercially reasonable efforts to minimize the impact of such Force Majeure Event.

13. Notices

All notices and other communications given or made pursuant to this Agreement must be in writing, sent to the persons designated herein or to such other persons and addresses as the parties may designate from time to time and will be deemed to have been given upon the earlier of actual receipt or (a) personal delivery to the party to be notified, (b) when sent, if sent by facsimile or electronic mail during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient's next business day, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt.

14. Assignment

This Agreement may not be assigned or delegated by either party without the prior written consent of the other party, which consent will not be withheld unreasonably. Notwithstanding the foregoing, either party may, without such consent, assign this Agreement and its rights and obligations hereunder to an affiliate or a purchaser of all or substantially all the assets of such party, or a third party participating in a merger, acquisition, sale of assets or other corporate reorganization in which such party is participating, provided that the assignee agrees to perform all obligations of assignor hereunder. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successors and assigns. Company may subcontract any or all of its obligations under this Agreement without Customer’s consent, provided that Company will remain responsible for such subcontractor’s performance hereunder.

15. Governing Law

This Agreement will be governed by, and construed in accordance with, the internal laws of the State of Delaware, without regard to its choice of laws principles. The application of the United Nations Convention on the International Sale of Goods is specifically disclaimed. Subject to Section 16, any action related to or arising from this Agreement shall take place exclusively in the courts situated in Wilmington, Delaware and the parties hereby submit to the venue of the courts situated therein.

16. Arbitration

Any dispute or controversy arising from or relating to this Agreement shall be arbitrated in Wilmington, Delaware before a single arbitrator who is jointly selected and mutually approved by the parties or, if the parties are unable to or fail to agree on the selection of the arbitrator within fifteen (15) days of the demand for arbitration being served, who is appointed by Judicial Arbitration and Mediation Services (JAMS) in accordance with its rules. The arbitrator shall serve as a neutral, independent, and impartial arbitrator. The arbitration will be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures (and in accordance with the expedited procedures in those rules), or, if applicable, in accordance with the JAMS International Arbitration Rules. The results of the arbitration procedure will be considered the Confidential Information of both parties. Any arbitration decision rendered will be final and binding, and judgment thereon may be entered in any court of competent jurisdiction. Notwithstanding the above, neither party will be required to arbitrate a dispute relating to the misuse or misappropriation or any Confidential Information or the infringement of intellectual property rights, which dispute shall be brought in the federal and/or state courts in Wilmington, Delaware, and each party hereby consents to the jurisdiction and venue of such courts for such disputes.

17. Non-Solicitation

Customer shall not, during the term of this Agreement and for a period of one (1) year thereafter, either directly or indirectly, recruit or otherwise solicit or induce, or enter into or participate in any plan or arrangement to cause, any person who is an employee of, or otherwise performing services for, Company, to terminate his or her employment or other relationship with Company, either for Customer’s own benefit or for the benefit of any other person, firm, corporation or organization. In the event that Customer violates this Article 17, Customer shall pay to Company, as liquidated damages, an amount equal to one hundred percent (100%) of the individual’s annualized cash compensation with Customer. Customer acknowledges and agrees that the amount of these liquidated damages is reasonable and that this provision may be enforced in a court of competent jurisdiction in the State of Illinois. Payment of these liquidated damages shall be made within fifteen (15) days of hire of such individual. For avoidance of doubt, this Section does not apply to individuals who respond to public advertisements.

18. Miscellaneous

18.1 Changes to Services. Company expressly reserves the exclusive right to, without prior notice, at any time and from time to time (i) offer new, additional or substitute products and services, and (ii) modify, amend or discontinue offering all or any particular Services.

18.2 Waiver. Failure by either party at any time to enforce any of the provisions of this Agreement or Order Form or any right or remedy available under this Agreement or Order Form or at law or in equity, or to exercise any option herein provided, shall not constitute a waiver of such provision, right, remedy, or option or in any way affect the validity of this Agreement and/or any Order Form. The waiver of any default by either party shall not be deemed a continuing waiver, but shall apply solely to the instance to which such waiver is directed.

18.3 Recitals. The recitals are hereby incorporated into and made a part of this Agreement.

18.4 Severability. If any one or more of the provisions of this Agreement and/or any Order Form are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement and/or any Order Form will be unimpaired and will remain in full force and effect.

18.5 Survival. Any provision of this Agreement which, by its nature, would survive termination of this Agreement will survive any such termination of this Agreement.

18.6 Headings. The headings and titles of the Sections of this Agreement are not part of this Agreement, but are for convenience only and are not intended to define, limit or construe the contents of the provisions contained herein.

18.7 Amendment. No modification of or amendment to any Order Form shall be effective unless such modification or amendment is in writing and signed by both parties hereto. Notwithstanding anything herein to the contrary, Company may, at any time, for any reason, in its sole and absolute discretion make changes to this Agreement, and any changes to this Agreement will become effective upon Customer’s execution of a new or additional Order Form in which the new terms of this Agreement will be incorporated. Company will post the updated Agreement on the “last updated” date listed above.

18.8 Counterparts. This Agreement and any amendments thereto may be executed in counterparts and will not be effective or enforceable unless and until it is executed by an authorized representative of each of the relevant entities.

18.9 Attorneys’ Fees. If either party brings legal action to enforce its rights under this Agreement and/or any Order Form, the prevailing party will be entitled to recover all fees, costs and expenses (including without limitation reasonable attorneys' fees) incurred in connection with the action.

18.10 Entire Agreement. This Agreement and the Order Forms constitute the entire agreement and understanding between the parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings between the parties. Any terms and conditions set forth in a Customer purchase order shall be inapplicable and of no force or effect.

18.11 Execution and Electronic Signature. Each party agrees that the electronic signatures, whether digital or encrypted, of the parties included on the applicable Order Form are intended to authenticate this writing and to have the same force and effect as manual signatures. Delivery of a copy of the Order Form or any other document contemplated hereby bearing an original or electronic signature by facsimile transmission, by electronic mail in portable document format (.pdf) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing an original or electronic signature.

18.12 Publicity. Neither party shall, without the prior written approval of the other party, disclose the existence and/or any of the terms or conditions of this Agreement to any third party or issue any press release or make any other public announcement relating to this Agreement or the other party. Notwithstanding the foregoing, Customer hereby grants Company the right to use Customer’s name, trade name, trademark, logo, acronym, or other designation to identify Customer as Company’s customer in connection with brochures, advertising, promotional materials made available or otherwise published by Company, without Customer’s prior consent.

18.13 Exclusivity. Customer acknowledges and agrees that the Services provided by Company are not exclusive to Customer and that Company may provide such Services to other entities.

18.14 Export Restrictions. The licensed application and/or documentation delivered to Customer under this Agreement is subject to U.S. export control laws and regulations and may also be subject to import and export laws of the jurisdiction in which it was obtained, if outside the U.S. Customer shall abide by all applicable export control laws, rules and regulations applicable to licensed application and/or documentation. Customer agrees that Customer will not export, re-export, or transfer the licensed application and/or documentation, in whole or in part, to any country, person, or entity subject to U.S. export restrictions. Customer specifically agrees not to export, re-export, or transfer the licensed application and/or documentation (i) to any country to which the U.S. has embargoed or restricted the export of goods or services, or to any national of any such country, wherever located, who intends to transmit or transport the products back to such country; (ii) to any person or entity who you know or have reason to know will utilize the licensed application or portion thereof in the design, development, production or use of nuclear, chemical or biological materials, facilities, or weapons; or (iii) to any person or entity who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government.

18.15 Interpretation. Unless the context of this Agreement otherwise indicates: (a) words using the singular number should also include the plural and words using the plural number should also include the singular; (b) the terms “hereof,” “herein,” “hereby” and derivative or similar words refer to this entire Agreement; (c) the terms “Article” or “Section” refer to the specified Article or Section of this Agreement; (d) the word “including” will mean “including, without limitation;” and (e) when used in the context of a series of items the word “or” will be construed such that the series may include any of the items, all of the items, or any combination of the items.

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