End User License Agreement
SANDBOXIE HOLDINGS, LLC
WWW.SANDBOXIE.COM
SOFTWARE LICENSE AGREEMENT – (30 July 2019)
BEFORE YOU CLICK ON THE “I AGREE” BUTTON OR USE ANY OF THE SOFTWARE SUPPLIED TO YOU BY SANDBOXIE HOLDINGS LLC (“SBH”), CAREFULLY READ ALL THE FOLLOWING TERMS AND CONDITIONS OF THIS AGREEMENT (“AGREEMENT”). BY CLICKING ON THE “I AGREE” BUTTON OR USING SBH’S SOFTWARE YOU ARE ACKNOWLEDGING THAT YOU AND YOUR ORGANIZATION (“LICENSEE”) ARE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE USING SBH’S PRODUCTS FOR THE FIRST TIME, AND YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE "I DON’T AGREE" BUTTON AND DO NOT USE ANY OF THE PRODUCTS. IF YOU ARE THE FIRST MEMBER OF YOUR ORGANIZATION TO ACCEPT THE TERMS OF THIS AGREEMENT, YOU WARRANT AND REPRESENT TO SBH THAT YOU ARE DULY AUTHORIZED TO AGREE TO THE TERMS OF THIS AGREEMENT ON BEHALF OF YOUR ORGANIZATION AND TO BIND YOUR ORGANIZATION TO ITS TERMS. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. THIS AGREEMENT SHALL BE EFFECTIVE AS OF THE DATE IT IS FIRST ACCEPTED OR ANY SBH PRODUCTS OR RELATED SERVICES ARE USED BY THE LICENSEE (“EFFECTIVE DATE”).
TERMS AND CONDITIONS
1. DEFINITIONS As used in this Agreement:
1.1 Authorized Use means use of the Product(s) for which LICENSEE has (i) purchased a license, or (ii) for a no-cost product, for which LICENSEE has agreed to the terms of this Agreement, or (iii) as may be separately agreed in writing between LICENSEE and SBH.
1.2 Documentation means any specification and use documentation made available by SBH to its end user customers generally with regard to the Products.
1.3 Open Source Software means computer software owned by third parties, licensed under the terms of various published license agreements and redistributed by SBH to its customers together with the Products.
1.4 Products means a combination of Software and Open Source Software.
1.5 1.6 Software means SBH’s browser protection software and all of its components, and other related SBH software programs, in object code format only. Software includes without limitation all copies in whole or part, backups, related documentation and manuals, information relating to such Software, printed listings of code, and any workarounds, maintenance releases, enhancements, and Updates provided by SBH to LICENSEE under this Agreement. The term “Software” shall not be deemed to include any Open Source Software.
1.7 Updates means error corrections, bug fixes, patches, additions, enhancements, upgrades or modified versions of the Software that may be made available by SBH from time to time. .
1.8 User means a person who is authorized by LICENSEE to use, or who has access to or receives any benefit of exposure to, the applicable Software, regardless of whether the individual is actively using the Software at any given time. If a single person uses, has access to or receives any benefit of exposure to multiple instances of the Software, then each such instance counts as a User.
2. ORDERS. All Software, Open Source Software and Documentation shall be delivered via electronic download.
3. PAYMENT AND TAXES. For no-cost Products, LICENSEE will be liable for and will pay all sums equal to taxes (including, without limitation, sales, withholding, value-added, and similar taxes) and any duties paid or payable, however designated, levied, and will reimburse SBH for any such sum that SBH is required to collect or pay with respect to transactions under this Agreement.
4. LICENSES AND CONDITIONS
4.1 Products.
4.1.1 Subject to the terms and conditions of this Agreement, SBH hereby grants to LICENSEE a limited, nonexclusive, personal, non-sublicenseable and non-transferable license under SBH’s intellectual property rights to install, and use, the Software solely for Authorized Uses in its internal business operation during the applicable license termThe license granted in this Section 4.1.1 above for each Software product shall remain in effect only during the applicable license term for that Software, and upon the expiration or termination of that term such license shall terminate in accordance with the provisions of Section 9.3 below. LICENSEE agrees (a) to respect and observe and not to alter, remove, or conceal any copyright, trademark, trade name, or other proprietary marking that may appear on or in the Products, and (b) that LICENSEE is responsible for itself obtaining any additional software, hardware, or technologies not provided by SBH under this Agreement and required to operate the Products, including but not limited to communications devices and Internet access services. LICENSEE may make one (1) copy of the Products and the Documentation for archival and backup purposes, provided that LICENSEE will reproduce on or in such copy any copyright, trademark, trade name, or other proprietary marking that may appear on or in the Products or Documentation copied. LICENSEE may not distribute or redistribute the Software to other Users.
4.1.2 LICENSEE may permit its authorized contractors to access the Products solely in connection with the performance of services for LICENSEE, provided that (i) LICENSEE shall be liable for the acts of any such contractors, and that (ii) LICENSEE shall cause such contractors to abide by the provisions of this Agreement, and shall indemnify SBH for their failure to do so.
4.1.3 The Products include proprietary information owned by SBH and its third party licensors, and the Software and the Documentation are provided to LICENSEE solely under license and not by sale. SBH and its third party licensors will continue to own their respective interests and intellectual property rights in the Products and will be entitled to terminate this Agreement in accordance with Section 9 below, and demand the return of their respective products, upon any failure of LICENSEE to comply with the terms of this Agreement or the conditions or restrictions imposed by third parties and referred to in Section 4.2 below.
4.1.4 SBH reserves the right to make changes to any Products whenever such changes, (a) are required for safety, (b) facilitate performance in accordance with specifications, or (c) are deemed necessary at the discretion of SBH.
4.1.5 LICENSEE acknowledges and agrees that as part of its normal operation the Software may collect certain data relating to (a) use of the Software, (b) any viruses, malware, Trojan Horses, and other malicious or harmful code discovered by the Software (collectively “Viruses”), (c) the behavior or operation of such Viruses, and (d) the data that is affected by the Viruses (collectively “Virus Data”). In the event LICENSEE has licensed SBH’s Software to collect Virus Data, a copy of the Virus Data will be sent by the Software to LICENSEE. If LICENSEE has not licensed SBH’s Software to collect Virus Data, Virus Data will be sent by the Software to SBH. The parties agree that they shall own all rights to the Virus Data jointly without accounting.
4.1.6 LICENSEE shall not itself, or through any affiliate, agent, or third party: (a) decompile, disassemble, or otherwise reverse engineer any Software, or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of any Software by any means whatsoever, except to the extent applicable laws specifically prohibit such restrictions, (b) modify, adapt, translate, or create derivative works based upon any Software, (c) transfer, lease, loan, sublicense, sell, resell for profit, distribute, or otherwise grant any rights (including but not limited to a right to access or use) in any Software in any form to any other party, (d) use any Software on a commercial time-sharing, rental, or service bureau basis, or in any manner or for any purpose other than an Authorized Use, or (e) disclose to any third party any underlying ideas or algorithms, performance information, test results or analyses learned by LICENSEE or created by or for LICENSEE (including, without limitation, benchmarks) relating to any Software. LICENSEE shall only have the rights with respect to the Products expressly set forth in this Agreement; all other rights are expressly reserved to SBH and its licensors. In the event LICENSEE believes that an action by it under Section 4.1.5 (a) above would be warranted and permitted by applicable law, it shall give SBH not less than ninety (90) days prior written notice of such belief to enable SBH and any affected licensor of SBH to evaluate whether such laws’ requirements necessitate such action.
4.1.7 LICENSEE acknowledges that the Products, and all trade secret, copyright, patent, trademark, trade name, and other intellectual and proprietary rights in the Products, are and at all times shall remain the valuable property of SBH and its licensors, or their respective successors or assigns. LICENSEE agrees that, except as provided in this Section 4, nothing contained in this Agreement shall be construed as granting or conferring by implication, estoppel, or otherwise, any license or right under any patent, trademark, copyright, or other proprietary right, whether now existing or hereafter obtained, and no such license or other right shall arise from this Agreement or from any acts or omissions in connection with the execution of this Agreement or the performance of the obligations of the parties.
4.1.8 LICENSEE agrees to promptly notify SBH of any violation of any of the terms of this Section 4.1 by LICENSEE or others of which LICENSEE becomes aware.
4.2 Open Source Software. SBH will redistribute certain Open Source Software to LICENSEE for LICENSEE’s use with Products. As a condition of its use of the Open Source Software, LICENSEE represents and warrants that it will familiarize itself with, and comply with and be responsible for observing, the conditions and restrictions required of software users by the owners of such Open Source Software.
5. SERVICES
5.1 Availability. Services or support are not available for the no-cost Product.
6. LIMITED WARRANTY
6.1 Software. SBH warrants that the Software delivered to LICENSEE by SBH will for a period of thirty (30) days from the date of delivery perform when utilized in an Authorized Use substantially as specified in the applicable Documentation. If LICENSEE satisfactorily demonstrates to SBH within such thirty (30) day period that an item of Software does not so perform then, as SBH’s sole and exclusive liability and as LICENSEE’s sole and exclusive remedy, SBH shall at its sole option either (a) correct the errors reported by LICENSEE, (b) replace the Software with substantially conforming Software, or (c) refund the price paid for the nonconforming Software. SBH does not warrant the results of its correction or replacement services or that all errors will be corrected. Correction or replacement and the issuance of any corrections, patches, bug fixes, workarounds, upgrades, enhancements, or Updates by SBH to LICENSEE, shall not be deemed to begin a new, extended, or additional warranty period. Any replacement Software will be warranted for the remainder of the original warranty period. The foregoing warranty shall not apply: (i) if the Software is used with products not specified in or contemplated by the Documentation, (ii) if any modifications are made to the Software by LICENSEE or any third party, (iii) to errors in the Software due to accident, abuse, abnormal stress or environment or improper use by LICENSEE, or (iv) to Software provided on a no charge or evaluation basis
6.2 No Other Warranties. THE LIMITED WARRANTY IN SECTION 6.1 ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF TRADE. SBH SPECIFICALLY BUT WITHOUT LIMITATION DOES NOT WARRANT THAT: (I) THE SOFTWARE SHALL MEET ALL OF LICENSEE’S REQUIREMENTS OR SHALL OPERATE IN ALL THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY LICENSEE, (II) THE OPERATION OF THE SOFTWARE SHALL BE ERROR-FREE OR UNINTERRUPTED, (III) ALL ERRORS OR DEFECTS IN THE SOFTWARE SHALL BE CORRECTED, OR (IV) ANY SECURITY MECHANISMS IMPLEMENTED BY THE SOFTWARE WILL NOT HAVE INHERENT LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO THAT THE ABOVE EXCLUSIONS MAY NOT APPLY TO LICENSEE. THIS WARRANTY GIVES LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
6.3 Exclusions. ANY OPEN SOURCE SOFTWARE AND ANY NO-COST, FREEWARE, OR EVALUATION PRODUCTS ARE PROVIDED TO LICENSEE “AS IS” WITHOUT WARRANTY OF ANY KIND BY SBH, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. No representation or other affirmation of fact, whether made by SBH employees or otherwise, shall be deemed a warranty by SBH for any purpose or give rise to any liability of SBH whatever unless contained in this Agreement.
7. INFRINGEMENT
7.1 Indemnity by SBH. If a third party acting against LICENSEE claims, threatens to claim, or obtains a judicial or administrative determination that any Software infringes its patent, copyright, or trade secret rights, SBH shall defend LICENSEE at SBH’s expense and pay all damages that a tribunal finally awards. INVINCIA shall also have the right at its sole option and expense to (a) obtain for LICENSEE the right to continue using the infringing item, (b) replace the infringing item or modify it so that it shall become non-infringing with no substantial degradation, or (c) remove the infringing portion of the Software and refund the proportional fee that LICENSEE paid for such portion, pro rata, on a one-year straight-line depreciation basis, provided that LICENSEE shall promptly notify SBH in writing of the claim, and allow SBH to control, and cooperate with SBH in, the defense and any related settlement negotiations. In no event shall SBH’s liability under this Section 7 exceed the amount paid by LICENSEE to SBH for any allegedly infringing Products.
7.2 Exceptions. Notwithstanding the provisions of Section 7.1 above, SBH shall have no obligation to LICENSEE for any claim arising from the license or use of any Software (a) that has been modified by a party other than SBH, (b) used to practice any process, or used in combination with other products not provided by SBH where such infringement would not have occurred but for such use in combination with such other products, (c) from failure of LICENSEE to use updated Software provided by SBH for avoiding such infringement, or (d) that is part of any no-cost or Evaluation Products. SBH shall not be bound by any settlement of any charge of infringement made without the prior written consent of SBH. LICENSEE shall indemnify and hold SBH harmless from any loss, cost, or expense in connection with any claim, suit, or proceeding brought against SBH or LICENSEE insofar as it is based on a claim that the use of any Software infringed because of the way it was modified or altered by parties other than by SBH, or because it was used in a manner for which it was not designed or for a use not an Authorized Use.
7.3 Limitation. THIS SECTION 7 STATES THE ENTIRE LIABILITY OF SBH TO LICENSEE AND ANY AND ALL THIRD PARTIES, WHETHER FOR DAMAGES OR OTHERWISE, FOR INFRINGEMENT OF ANY COPYRIGHT, PATENT, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY RIGHT WITH RESPECT TO ANY PRODUCTS OR SERVICES FURNISHED BY SBH UNDER THIS AGREEMENT.
8. LIMITATION OF LIABILITY
8.1 Limitation. It is expressly agreed that each party’s maximum liability for damages to the other party under or in connection with this Agreement, regardless of the form of legal action, whether in contract or in tort, including negligence, shall in no event exceed the actual payments received by SBH for the Products or Services that caused such damage or that are directly related to the cause of action, except that no such limitation on damages shall apply to losses due to either party’s breach of Section 11.11 or LICENSEE’s breach any of the licenses or license restrictions set forth in this Agreement.
8.2 No Consequential Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR PUNITIVE, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE, OR LOSS OF DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS, OR, IF REASONABLY FORESEEABLE, INCURRED BY THE OTHER PARTY OR CLAIMED AGAINST THE OTHER PARTY BY ANY OTHER PARTY, EXCEPT THAT NO SUCH LIMITATIONS ON CONSEQUENTIAL DAMAGES SHALL APPLY IN THE EVENT OF BREACH BY EITHER PARTY OF SECTION 11.11 OR BREACH BY LICENSEE OF ANY OF THE LICENSES OR LICENSE RESTRICTIONS CONTAINED IN THIS AGREEMENT. NEITHER PARTY’S LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM THE NEGLIGENCE OF A PARTY OR THAT OF ITS EMPLOYEES OR AGENTS OR IN RELATION TO ANY OTHER LIABILITY THAT MAY NOT BY APPLICABLE LAW BE EXCLUDED OR LIMITED IS EXCLUDED OR LIMITED AND NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED AS AN ATTEMPT TO EXCLUDE OR LIMIT SUCH LIABILITY.
8.3 Reasonability. The parties agree that the provisions of this Agreement fairly allocate the risks between SBH, on the one hand, and LICENSEE on the other. LICENSEE acknowledges and agrees that its pricing reflects the allocations of risk and the limitations of liability specified in this Agreement, and that SBH would not enter into this Agreement without such allocations and limitations.
9. TERM; TERMINATION
9.1 Term. Unless otherwise specifically indicated and mutually agreed to on LICENSEE’s accepted purchase order or other written agreement between the parties, this Agreement shall be effective from the Effective Date and shall continue in full force and effect as long as Software is in use by LICENSEE as permitted by the terms of this Agreement and unless and until terminated as set forth elsewhere in this Agreement.
9.2 General. Upon any material breach or default of this Agreement by either party, the other party shall have the right to terminate this Agreement, any or all licenses granted and Services to be performed under it and their respective terms effective on thirty (30) days’ prior written notice. Such termination shall become automatically effective unless the breaching or defaulting party shall have cured any material breach or default prior to the expiration of the thirty (30) day period. This Agreement and the term of any or all licenses may also be terminated immediately upon (a) bankruptcy, insolvency, or placing of the assets or the business of the other party in the hands of a receiver or trustee, (b) filing of a petition for bankruptcy or reorganization by or against the other party, (c) dissolution or liquidation of the other party, or (d) failure of LICENSEE to pay any sum when due under or in connection with this Agreement. Neither party shall be liable to the other for its failure to perform its obligations under this Agreement, except for payment obligations, during any period in which such performance is delayed or rendered impracticable or impossible due to circumstances beyond its reasonable control.
9.3 Consequences. In the event of termination of this Agreement for any reason, LICENSEE shall promptly (a) discontinue all use of the Software and Documentation; (b) erase or destroy any Software and Documentation contained in the computer memory or data storage apparatus under the control of LICENSEE, (c) return to SBH all copies of the Software provided by SBH in LICENSEE’s possession, and (d) certify in writing to SBH, within thirty (30) days of termination of this Agreement, that LICENSEE has complied with the foregoing. Upon termination of this Agreement any sums owed to SBH under this Agreement will be immediately due and payable, and all licenses granted in this Agreement shall terminate. Sections 4, 4.1.2, 4.1.5, 4.1.6, 6 through 9, 10.2.2, 10.4, 10.5 and 11 shall survive any termination of this Agreement.
10. SPECIAL TERMS APPLICABLE TO FREEWARE AND EVALUATION PRODUCTS ONLY
10.1 Components and Terms. LICENSEE and SBH shall agree separately on the components comprising the Freeware and Evaluation Products and the length of the license period. The use of the Freeware or Evaluation Products shall be governed by the terms of this Agreement. SBH shall provide Software and Documentation and any other software via electronic download. Unless the parties shall otherwise agree in writing, SBH shall loan the Freeware or Evaluation Products to LICENSEE at no charge for a period of time agreed between the parties. Title to the Freeware Evaluation Products shall at all times remain in SBH and its licensors.
10.2 LICENSEE Responsibilities.
10.2.1 LICENSEE shall: (a) be responsible for the proper use and deployment of the Evaluation Products, and for training anyone using the Evaluation Products on their proper use in accordance with any Product use procedures, (b) use the Evaluation Products solely for the limited purposes of conducting its own internal tests to evaluate the performance and functionality of the Evaluation Products in LICENSEE’s internal business environment or for LICENSEE’s business purposes that are Authorized Uses, (c) make the Evaluation Products available for maintenance and support purposes as requested by SBH on a reasonable basis, subject to mutual agreement between the parties on scheduling, and (d) take appropriate action, by means of agreement, instruction or otherwise, with respect to its employees or other third parties permitted access to the Evaluation Products in furtherance of its permitted use to ensure that all of its obligations under this Agreement are satisfied.
10.2.2 LICENSEE shall not: (a) use or permit third parties to use the Evaluation Products for production purposes or other commercial purposes, (b) modify or attempt to maintain or repair the Evaluation Products without first obtaining SBH’s prior written permission, (c) permit the imposition of any lien, charge or encumbrance on the Evaluation Products while in LICENSEE’s possession, or move the Evaluation Products from their initial installation location without first obtaining SBH’s prior written permission, or (d) disclose or share operation, performance, design, architecture or any other information on the Evaluation Products, or test results or analyses created by or for LICENSEE (including, without limitation, benchmarks) relating to the Evaluation Products, to or with any third party, which restrictions shall survive any termination of this Agreement.
10.3 Availability of Services. SBH does not provide maintenance and support Services for the Evaluation Products.
10.4 Exclusion of Warranties. SBH DISCLAMS ALL WARRANTIES WITH RESPECT TO THE EVALUATION PRODUCTS, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF TRADE. This risk allocation reflects the lack of charges for the use of the Evaluation Products.
10.5 Consequences of Termination. In the event of termination of this Agreement or the evaluation for any reason, LICENSEE shall promptly (a) discontinue all use of the Evaluation Products, and (b) return to SBH or destroy (with written certification of destruction to SBH) all copies of the Software and Documentation provided by SBH or in LICENSEE’s possession.
10.6 Conversion to Purchase. In the event LICENSEE elects to purchase a license for any of the Evaluation Products prior to their removal by SBH, LICENSEE shall do so in accordance with the provisions of Sections 2 and 3 above, and the terms and conditions of this Agreement shall govern such purchase.
11. GENERAL
11.1 Notices. All notices required or permitted under this Agreement will be in writing and will be deemed given: (a) when delivered personally, (b) when sent by confirmed telex or facsimile, (c) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one (1) day after deposit with a commercial overnight carrier specifying next day delivery, with written verification of receipt. All communications will be sent to the principal office of each party or to such other address as may be designated by a party by giving written notice to the other party pursuant to this Section 11.1. If the communication is from LICENSEE to SBH, it shall be addressed to “Attn: President.” If the communication is from SBH to LICENSEE, it shall be addressed to the Chief Executive Officer of LICENSEE.
11.2 Assignment. LICENSEE may not assign, delegate or otherwise transfer this Agreement or any of its licenses, rights or duties under this Agreement, whether by operation of law or otherwise, without the prior written consent of SBH. Any attempt to transfer or assign this Agreement without such written consent will be null and void. If the Software is a valid Update, a permitted transfer may be made only in conjunction with the prior version(s) of the Software. SBH may assign this Agreement without LICENSEE’s consent to any affiliate or to a person or entity into which it has merged or which has otherwise succeeded to all or substantially all of its business and assets to which this Agreement pertains, by merger, reorganization or otherwise, and which has assumed in writing or by operation of law its obligations under this Agreement. Subject to the previous sentence, the rights and liabilities of the parties hereto will bind and inure to the benefit of their respective successors, executors, and administrators, as the case may be.
11.3 Waiver. The failure of either party to enforce in any one or more instances any of the terms and conditions of this Agreement shall not be construed as a waiver of future performance of any such term or condition. Waiver of any term or condition shall only be deemed to have been made if expressed in writing by the party granting such waiver.
11.4 Severability. If any provision of this Agreement shall be held by a court of law of competent jurisdiction to be illegal, invalid, or unenforceable, that provision shall be reformed, construed, and enforced to the maximum extent permissible and the remaining provisions shall remain in full force and effect.
11.5 Governing Law and Jurisdiction. This Agreement shall be governed by and construed under the laws of the Commonwealth of Virginia without regard to conflict of laws provisions, provided however that the parties expressly disclaim and exclude the application to this Agreement of the Uniform Computer Information Transactions Act as adopted in Virginia. The federal and state courts sitting in the Eastern District of Virginia shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of this Agreement. Each party hereto expressly consents to the personal jurisdiction of the courts of Virginia and service of process being effected upon it by registered mail sent to the respective addresses referred to in Section 11.1 above. The United Nations Convention on Contracts for the International Sale of Goods does not apply.
11.6 Entire Agreement. This Agreement and any Exhibits and any separate SBH agreement referenced elsewhere in this Agreement constitute the entire understanding between the parties, and supersede all prior discussions, representations, understandings or agreements (including any pre-existing nondisclosure agreement, except as to its surviving terms), whether oral or in writing, between the parties with respect to the subject matter of this Agreement. Any preprinted or otherwise prescribed provisions of LICENSEE’s purchase orders required by LICENSEE other than quantity, price, and the like, or other terms that conflict with the terms of this Agreement, shall not apply, exception to such provisions and terms is hereby given by SBH, and the terms set forth in this Agreement shall be applicable and control. Any modification or amendment to this Agreement must be in writing and signed by authorized representatives of both parties. Except as otherwise provided in Section 4.2 above regarding Open Source Software, any item or service furnished by SBH in furtherance of this Agreement, although not specifically identified in it or in a purchase order referencing this Agreement, shall nevertheless be covered by this Agreement unless specifically covered by some other written agreement executed by LICENSEE and an authorized representative of SBH. The headings and captions used in this Agreement are for convenience only, and shall not affect the interpretation of the provisions of this Agreement.
11.7 U.S. Government Restricted Rights. LICENSEE may not acquire the Software on behalf of the U.S. Government unless SBH has consented to such acquisition in writing. If the Software is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor at any tier, then the Software and the accompanying Documentation are to be considered “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in 48 C.F.R. 12.1212 and 48 C.F.R. 227.7202. Except for any arrangements or agreements that SBH may have with U.S. Government or agency thereof with respect to the Software or intellectual property rights therein, the U.S. Government’s rights in the Software and any accompanying Documentation will be only as set forth in this Agreement, in accordance with 48 C.F.R. 227.7201 through 227.7202-4 (for Department of Defense (DOD) acquisitions) and with 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions). The Software is provided with RESTRICTED RIGHTS. The Software is comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and is provided to the Government (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-4.
11.8 Export Control. LICENSEE acknowledges that the Software licensed herein is subject to the export control laws and regulations of the United States of America (the “U.S.”) and any amendments to them. LICENSEE confirms that with respect to the Software, it will not export or re-export it, directly or indirectly, either to: (a) any countries that are subject to U.S. export restrictions, (b) any end user who LICENSEE knows or has reason to know will utilize it in the design, development, or production of nuclear, chemical or biological weapons, or (c) any end user who has been prohibited from participating in U.S. export transactions by any federal agency or the government of the U.S.. LICENSEE further acknowledges that the Software may include technical data subject to export and re-export restrictions imposed by U.S. law. LICENSEE agrees to indemnify SBH, to the fullest extent permitted by law, from and against any fines or penalties that may arise as a result of LICENSEE’s breach of this provision. This export control clause shall survive termination of this Agreement.
11.9 Use of LICENSEE Name. LICENSEE agrees that SBH may use LICENSEE’s name in SBH's customer list and may publish information identifying LICENSEE as a user of SBH products in advertisements, news releases and releases to professional and trade publications. LICENSEE will have the right to approve each such release prior to its placement, but agrees not to unreasonably withhold its approval.
11.10 Independent Contractors. The relationship of SBH and LICENSEE established by this Agreement is that of independent contractors, and nothing contained in the Agreement will be construed to constitute the parties as partners, joint venturers, co-owners, or otherwise as participants in a joint or common undertaking. For a period of one (1) year following the completion of any Services performed for LICENSEE under this Agreement, LICENSEE shall not directly or indirectly employ, solicit for employment or contract with any SBH personnel performing such Services for LICENSEE under this Agreement.
11.11 Confidential Information. Each party acknowledges that by reason of its relationship to the other party under the provisions of this Agreement it may have access to certain information and material concerning the other party's business, plans, customers, technology, and products that are confidential and of substantial value to the disclosing party (“Confidential Information”), which value would be impaired if such Confidential Information were disclosed to third parties. Each party agrees to maintain all Confidential Information received from the other, both orally and in writing, in confidence and agrees not to disclose or otherwise make available such Information to any third party without the prior written consent of the disclosing party. Each party further agrees to use the Confidential Information only for the purpose of performing this Agreement. No information shall be deemed confidential unless so marked if given in writing or, if given orally, identified as confidential orally prior to disclosure, except that LICENSEE agrees that any information in whatever form relating to (a) the terms of this Agreement, the Documentation and the underlying ideas, algorithms, techniques, knowhow, design, architecture, functionality, operational methods or coding of the Software, including but not limited to any complete or partial source or object code versions or related patent applications, and (b) performance information, test results, algorithms, techniques, product roadmap and knowhow or analyses created by or for LICENSEE (including, without limitation, benchmarks) relating to the Products, shall be deemed Confidential Information of SBH regardless of the presence or absence of any confidential markings or identification.
11.11.1 The obligations of non-disclosure under this Agreement shall not apply to information which: (a) is or becomes a matter of public knowledge through no fault of or action by the receiving party; (b) was rightfully in the receiving party’s possession prior to receipt from the disclosing party; (c) subsequent to disclosure, is rightfully obtained by the receiving party from a third party who is lawfully in possession of such information without restriction; (d) is independently developed by the receiving party without resort to Confidential Information; or (e) is required to be disclosed by law or judicial order, provided that prior written notice of such required disclosure is furnished to the disclosing party as soon as practicable in order to afford the disclosing party an opportunity to seek a protective order and that if such order cannot be obtained disclosure may be made without disclosing party liability. The receiving party shall promptly notify the disclosing party upon discovery of any loss or unauthorized disclosure of disclosing party’s Confidential Information. Whenever requested by the disclosing party, the receiving party shall immediately return to the disclosing party all manifestations of its Confidential Information or, at the disclosing party’s option, shall destroy all such Confidential Information as the disclosing party may designate. Recipient's obligation of confidentiality shall survive this Agreement for a period of seven (7) years from the date of its termination, and thereafter shall terminate and be of no further force or effect. ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND.
11.11.2 Each party acknowledges that any breach of any of its obligations with respect to the other party's Confidential Information hereunder may cause or threaten irreparable harm to such party. Accordingly, each party agrees that in such event each party shall be entitled to seek equitable relief to protect its interests, including but not limited to temporary restraining orders, preliminary and permanent injunctive relief, as well as money damages.
11.12 Audit. While this Agreement is in effect and for a period of one (1) year after it terminates, SBH will have the right not more often than twice during any calendar year, on reasonable notice to LICENSEE and during normal business hours, to conduct an audit of LICENSEE’s books, records, and supporting documentation that relate to any of LICENSEE’s obligations under this Agreement. Any underpayment revealed by the audit will promptly be remitted by LICENSEE in a manner designated by SBH. In the event of an underpayment to SBH of five (5%) or more, LICENSEE will also reimburse SBH for the reasonable cost of such audit. On SBH's written request, but not more frequently than annually, LICENSEE will furnish SBH with a statement signed by an officer authorized to legally bind LICENSEE verifying that the Software is being used in full compliance with the provisions of this Agreement.
