This End-User Software Subscription License and Support Agreement ("EULA" or "Agreement"), made and entered into as of the Effective Date, is a legal agreement between you, either an individual or an entity ("Subscriber") and Neverfail LLC ("Neverfail"). This Agreement sets forth the terms and conditions under which Neverfail licenses certain of its software products and provides related support services to Subscriber. Subscriber acknowledges that Subscriber has read Neverfail's Support Services Agreement ("SSA"), made available to Subscriber on Neverfail's website, www.neverfail.com. IMPORTANT-READ CAREFULLY: BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, SUBSCRIBER AGREES TO BE BOUND BY THE TERMS OF THIS END USER SOFTWARE SUBSCRIPTION LICENSE AGREEMENT ("EULA") AND THE SSA. IF SUBSCRIBER DOES NOT AGREE TO THE TERMS OF THIS EULA, DO NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE.
1.1 "Call Home" means the Licensed Software service that communicates with the Neverfail proprietary, cloud based licensing service for the purposes license policy enforcement.
1.2 "Confidential Information" means all non-public information provided by or relating to a Discloser or its affiliates and includes, without limitation, either party's source code, customer lists, products, product roadmaps, financial information, business information and marketing strategies disclosed in written or other tangible form (including on magnetic media) or by electronic, oral, visual or other means.
1.3 "Delivery Date" means the date the Software Subscription License Key is provided to Subscriber to allow Subscriber to download the Licensed Software for electronic delivery.
1.4 "Designated Computer(s)" means the server(s) or processor(s) on which the Licensed Software will be installed and that will be configured not to exceed the Quantity specified in each Purchase Order.
1.5 "Discloser" means a party, including its Representatives, that discloses Confidential Information to the other party.
1.6 "Documentation" means explanatory and informational materials concerning the Licensed Software, in printed or electronic format.
Documentation does not include software source or object code.
1.7 "Effective Date" means the Delivery Date or the date of the Purchase Order for the Licensed Software, whichever date is earlier.
1.8 "End-Subscriber" means the employees or independent contractors of Subscriber who are authorized by Subscriber to access or use the Licensed Software.
1.9 "Error" means any material error or defect in the Licensed Software that causes the Licensed Software not to substantially conform to the Documentation.
1.10 "Field of Use" means Subscriber's internal use of the Licensed Software in Subscriber's ordinary course of business, and not for any other purpose including, without limitation, commercial time sharing, in an outsourcing environment, rental, service bureau or similar activity.
1.11 “Forward Functional” means that Neverfail uses forward upgrades of current release versions to resolve software glitches, bugs and security related vulnerabilities. Neverfail will not go backwards to resolve issues with previous, legacy versions that are at End-of-Life.
1.12 "Intellectual Property" means Neverfail's intellectual property including without limitation all (a) inventions (whether patentable or unpatentable and whether or not reduced to practice) and all improvements thereto; (b) copyrightable works; (c) trade secrets; (d) Products, (e) know-how and feedback concerning the Products and (f) copies and tangible embodiments thereof (in whatever form or medium), as well as any and all rights to any modifications or enhancements to the foregoing made by or on behalf of Subscriber.
1.13 "Intellectual Property Rights" means all patents (including reissues, divisions, continuations and extensions thereof), utility models, and registered and unregistered designs including mask works, copyrights and any other form of protection afforded by law to inventions, models, designs or technical information, trademarks and applications.
1.14 "License Fees" means the Licensed Software fees for the Licensed Software as listed in a Purchase Order.
1.15 "Licensed Software" means Neverfail's proprietary high availability and disaster recovery software products in object code form made generally available for resale or license, including Documentation and Updates.
1.16 "Partner" means an authorized Neverfail Licensed Software reseller or distributor.
1.17 "Professional Services Agreement" or "PSA" means the then-current Neverfail agreement for installation or other professional services.
1.18 "Purchase Order" means a written document, executed by the parties or by Subscriber and Partner which identifies the Licensed Software including Quantity, License Fees, payment terms and other terms and conditions.
1.19 "Quantity" means the number of copies of the Licensed Software licensed to Subscriber as listed in each Purchase Order.
1.20 "Recipient" means a party, including its Representatives, that receives Confidential Information from the other party.
1.21 "Rental" means effective from the Software Subscription Authorization start date, the license enables access to the product features and functions. It requires a daily "call home" connection to the Neverfail License Server. Rental authorizations are regenerated automatically once per month to continue the “Right to Use” as long as the subscription is good standing. See also 1.23.
1.22 "Representatives" means the employees, affiliates, affiliates' employees, directors, officers, attorneys, accountants, financial advisors and agents of a party.
1.23 “Right to Use” means the Subscriber can use the software within the specific term of the software subscription authorization period after which there is a required renewal purchase to retain the “Right to Use”.
1.24 "Software License Key" means a serial number issued to Subscriber by Neverfail to download, activate and use the Licensed Software.
1.25 "Support Fees" means the fees charged by Neverfail to Subscriber for Support Services.
1.26 "Support Period" means any twelve (12) month period as measured from the Effective Date, or the anniversary of the Effective Date, of this Agreement during which Subscriber will pay for and is then entitled to receive Support Services from Neverfail.
1.27 "Support Services" means maintenance and support services for the Licensed Software as set forth in a Support Services Agreement.
1.28 "Support Services Agreement" or "SSA" means the then-current Neverfail agreement for Support Services (as changed from timeto-time) for the Licensed Software.
1.29 "Term" means a period of time where the Neverfail software subscription authorization start date enables access to the product features and functions and an end date when the “Right to Use” ends. Term is a minimum of 1 year but can be extended for months or years. When the “Right to Use” period expires on the software subscription authorization, a renewal of the software subscription authorization is required to continue the “Right to Use” term or the product suspend operation.
1.30 "Updates" means maintenance releases that are made generally available to Subscribers who are eligible to receive Support Services.
1.31 "Use" means (a) accessing, copying, installing or otherwise transferring any portion of any Licensed Software; (b) executing any portion of any Licensed Software, directly or indirectly, using a computer processor or (c) accessing any Designated Computer for the purpose of obtaining or preparing information or data created through the execution of the Licensed Software.
Neverfail offers two types of licenses: an evaluation license ("Evaluation License") and a time limited software subscription ("Software Subscription"). The type of software subscription granted depends upon (a) the Software License Key issued by Neverfail; (b) sales documents including purchase orders or (c) both (a) and (b).
3.1 General. If the Software License Key is for an Evaluation License, the Licensed Software may be activated with no-cost evaluation, proof of concept or demonstration Software License Key(s). Subscriber acknowledges that: (a) the Evaluation License has an expiration date ("Evaluation Expiration Date") after which Neverfail is not obligated to permit further use of the Licensed Software and (b) Subscriber must cease use of and remove the Licensed Software on the Evaluation Expiration Date.
3.2 Evaluation License Grant. If the License is an Evaluation License, Subscriber is hereby granted a non-exclusive, non-transferable, paid-up, time-limited license to install and use the Licensed Software until the Evaluation Expiration Date solely to evaluate the suitability of licensing the software on a for-fee basis.
3.3 Evaluation Product Warranty Disclaimer. The warranties set forth in Section 12.1 and Section 12.2 below do not apply to an Evaluation License. the SOFTWARE LICENSED UNDER AN EVALUATION LICENSE is provided to SUBSCRIBER "as is" without warranty of any kind, whether express, implied, statutory, or otherwise. NEVERFAIL AND ITS LICENSORS BEAR NO LIABILITY FOR ANY DAMAGES RESULTING FROM USE (OR ATTEMPTED USE) OF THE EVALUATION PRODUCT THROUGH AND AFTER THE EXPIRATION DATE.
3.4 No Support. Neverfail has no duty to provide support and maintenance for the Licensed Software during under the Evaluation License.
4.1 Term Software Subscription. If the license is a Term Software Subscription, subject to the terms of this EULA, Neverfail hereby grants to Subscriber, solely for Subscriber's operations within the Field of Use, a non-exclusive, non-transferable, Term Software Subscription that is periodically ("Term") renewable worldwide without rights to sublicense, paid-up once a year. The license gives the Subscriber the “Right to Use” which must be renewed yearly. Subscriber acknowledges that: (a) the Software Subscription has an expiration date ("Subscription Expiration Date"), after which Neverfail is not obligated to permit further use of the Licensed Software and (b) Subscriber must cease use of and remove the Licensed Software on the Subscription Expiration Date. This requires the following: (a) Subscriber will be billed yearly for subscription renewals; (b) and Licensed Software must continually be able to communicate directly with Neverfail licensing servers via the call home feature ; (c) and Subscriber can choose to opt-out for subscription at the end of the term with no penalty; (d) and Licensed Software services will automatically shutdown; (e) and Subscriber will not have access to support or software upgrades; (f) and install and Use the Licensed Software in accordance with the Documentation in the Quantity for which Subscriber has paid License Fees; (g) use the Documentation solely to support Subscriber's authorized Use of the Licensed Software; and (i) make a reasonable number of machine-readable copies of the Licensed Software for backup and archival purposes only. Term Software Subscriptions can only be installed on one protected application server at a time. However user may elect to transfer to another protected application server either at the beginning of a new Term or Licensed Software Term can be terminated for the protected application and a new License can be generated and then Termed based on the original protected application server Term.
4.1.1 Adaptive Start Date: The Neverfail Term Software Subscription start date is set to the date agreed to at the time of purchase. The default start date will be the fulfillment date unless otherwise specified by the Subscriber. Once the license authorization is created, the license authorization is affected in the following manner: (a) if the start date is the fulfilment date, the license authorization becomes active immediately and is on a countdown clock to the next renewal, (b) if the start date is in the future, the countdown clock to the next renewal will start at that future date, (c) if the start date is in the future but the license authorization is activated (EULA is accepted) before that date is reached, the countdown clock to the next renewal will be based on the EULA acceptance date. This allows the Subscriber to delay installation without penalty of reduction of the “Right to Use” time on the license authorization. However, once the license is activated (EULA is accepted) the start date is then set and cannot be changed. This applies to both online and offline activations.
4.1.2 Right to Use vs. Payment status. Term Software
Subscription is ready to be consumed immediately upon fulfilment. Depending on
the payment status, the right to use may or may not be limited a follows: (a)
if the payment is pending when software subscription is being activated
(consumed), a limited forty-five (45) days license key counted from the term
software subscription start date will be generated; as soon as the payment is
confirmed, the full term software subscription period is unlocked; relicensing
with a full term license key will be performed automatically for online
licensing; (b) if the payment is confirmed when software subscription is being
activated (consumed) a full term license key will be generated. Similar payment
status usability rules apply also in the case of license term software
4.2 Rental Software Subscription. If the license is a Rental Software Subscription, subject to the terms of this EULA, Neverfail hereby grants to Subscriber, solely for Subscriber's operations within the Field of Use, a non-exclusive, non-transferable, Term Software Subscription that is periodically ("Term") renewable worldwide without rights to sublicense, paid-up monthly. The license gives the Subscriber the “Right to Use” which must be renewed monthly. Subscriber acknowledges that: (a) the Software Subscription has an expiration date ("Subscription Expiration Date"), after which Neverfail is not obligated to permit further use of the Licensed Software and (b) Subscriber must cease use of and remove the Licensed Software on the Subscription Expiration Date. This requires the following: (a) Subscriber will be billed a monthly subscription rate; (b) and Licensed Software must continually be able to communicate directly with Neverfail licensing servers via the call home feature; (c) and Subscriber can choose to terminate the subscription without penalty at any time; (d) and Licensed Software services will automatically shutdown; (e) and Subscriber will not have access to support or software upgrades; (f) and install and Use the Licensed Software in accordance with the Documentation in the Quantity for which Subscriber has paid License Fees; (g) use the Documentation solely to support Subscriber's authorized Use of the Licensed Software; and (i) make a reasonable number of machine readable copies of the Licensed Software for backup and archival purposes only. Rental Software Subscriptions can only be installed on one protected application server at a time with no ability to transfer the license to another protected application server. Offline activation is not supported with Rental Software Subscriptions.
4.3 Evaluation License and NFR Licenses. Evaluation License is set to a standard of a 30-day but not to a exceed 60-day term on the Software Subscription Authorization. NFR (Not for Resale) License Authorizations are set to a standard of six months. See Term Software Subscription.
5.1 Restrictions. Subscriber shall not and shall not permit any third party to (a) translate, disassemble, reverse engineer, recompile, decompile, update, modify, merge, prepare derivative works, adapt, translate or copy any portion of the Licensed Software except as authorized herein or as otherwise expressly permitted by applicable law; (b) use the Licensed Software in violation of applicable local, state, national and international laws and regulations; or (c) alter, change, or remove any titles, trademarks, trade names, copyright notices, legends or other proprietary markings placed on the Licensed Software.
5.2 Operating Environment. Subscriber shall be responsible for providing and maintaining all necessary hardware and the proper environment to operate the Licensed Software as specified by the Documentation or as otherwise specified in writing by Neverfail including, but not limited to, acquiring and maintaining the necessary system configuration (hardware and software) and any necessary third party software and licenses needed to utilize the various capabilities of the Licensed Software. Neverfail is not responsible or liable for any errors or defects in such hardware or third party software.
5.3 Open Source Software. The Licensed Software may come bundled or otherwise be distributed with open source software or freeware technology, which is subject to the terms and conditions of the specific license under which the open source software is distributed. THIS OPEN SOURCE SOFTWARE IS PROVIDED BY NEVERFAIL "AS IS" WITHOUT ANY WARRANTY, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS EULA, AS IT RELATES TO ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH OPEN SOURCE SOFTWARE, NEVERFAIL SHALL HAVE NO LIABILITY FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES.
5.4 Offline License Activation. The only exception to the requirement for continued communication with Neverfail licensing service is an offline activation method. Where applicable, Neverfail Support will provide this service only if Subscriber is current on Term maintenance.
5.5 Conversion of Legacy Licenses to Term. Neverfail reserves the right to convert existing licenses to the latest version of product consistent with the terms of section 4 of the EULA. Where legacy products come to end-of-life, license changes are required and software maintenance payments is current (a) Subscriber will be automatically issued the new software subscription authorizations in support of the latest version of the software. (b) Subscriber is not required to implement the current product but will be billed as if they were on the current product.
5.6 Software Subscription Termination. Neverfail reserves the right to terminate any Software Subscription if Subscriber does not (a) pay for a monthly or yearly subscription renewal with Neverfail; (b) OEM services with Subscriber are cancelled in which Neverfail software products and services are sold and licensed; (c) monthly or yearly renewal payment is not received within the payment terms; (d) or Subscriber is found to be in violation of the terms of the EULA. If termination is required, Neverfail is not obligated to provide Subscriber with a prorated credit for the remaining term of the software subscription. Subscriber must cease use of and remove the Licensed Software.
5.7 End of Life (EOL): Periodically Licensor will end the life of its previous legacy versions of its software. There are many reasons for this change including but not limited to: (1) security related vulnerabilities, (2) new product features, (3) supportability, and (4) the cost of maintaining older version for the software. Licensor’s products are “Forward Functional”. Licensor has made provisions to allow its customers to easily upgrade from a previous version current release. Once EOL is reached, the Licensor recommends that Subscriber upgrade to maintain the highest levels of support. The following diagram details the legacy support policy:
- Continuity Engine Code Fixes: Yes
- Continuity Engine Security Patches: Yes
- Reinstallation: Requires PS Purchase
- Failover Support: Yes
- General Q&A: Yes
- License Regeneration: Yes
- Configuration Changes: Yes
- Upgrades: Yes
Affected Support Options for Legacy (EOL) Versions
- Continuity Engine Code Fixes: No
- Continuity Engine Security Patches: No
- Reinstallation: No
- Failover Support: No
- General Q&A: No
- License Regeneration: No
- Configuration Changes: No
- Upgrades: 32bit – No | 64bit – Yes (from 6.7 or higher)
All support for legacy (EOL) customers is limited to upgrade troubleshooting. We support what Microsoft supports. Therefore, we EOL 32bit protection.
Once the software is upgraded to the current release from a previous legacy version (perpetual), the old license is considered null and void in favor of the term-based software subscription.
6.1 Delivery. Neverfail will deliver the Software Subscription License Keys to Subscriber.
6.2 Records and Reports. Subscriber shall maintain clear and complete records during the term of this Agreement and for a period of at least three (3) years following the termination of this Agreement showing (a) the disposition of each copy of the Licensed Software made or used by Subscriber; (b) the installed Quantity; and (c) the number and description of the computer(s) on which the Licensed Software is installed. Within ten (10) business days of a request by Neverfail, Subscriber shall submit a report in a format specified by Neverfail, showing the information described in items (a), (b), and (c) herein. On Neverfail's reasonable request, but not more than once annually, Subscriber will furnish Neverfail with a signed statement certifying compliance with the provisions of this Agreement.
6.3 Audit. During the term of this Agreement and for a period of two (2) years after the termination of this Agreement, Subscriber will maintain accurate records as to its use of the Licensed Software. Neverfail shall have the right, at its own expense and upon reasonable written notice to Subscriber, to inspect such records and computing devices to verify compliance with this Agreement provided that Subscriber may conduct not more than one (1) such audit during any twelve (12) month period. Subscriber shall promptly pay under payments revealed by any such audit. Subscriber shall pay for the cost to conduct the audit if any deficiency exceeds five percent (5%) of the Software Subscription Fees previously paid. Such audit will be conducted during Subscriber's normal business hours and in such manner as not to unreasonably interfere with Subscriber's normal business activities.
7.1 Fees. Subscriber shall pay the Software Subscription Fees and Support Fees set forth in the relevant Purchase Order.
7.2 Payment. Fees due from Subscriber may not be withheld or offset for any reason and all invoices shall be due and payable in full within thirty (30) days from the date of such invoice. Partial payments shall not be construed as acceptance of payment in full. All fees are payable in the currency set forth in the Purchase Order. ACH payments can be arranged and are encouraged for support renewals. On completing an ACH recurring payment authorization form support renewal payments will be collected 5 workings days before the renewal recommencement ensuring continuous coverage.
7.3 Taxes. Fees are exclusive of all taxes, including without limitation, sales, use, value-added or other taxes or levies on transactions made or Support Services provided under this Agreement. If a certificate of exemption or similar document is required to exempt Subscriber from sales or use tax liability, Subscriber shall promptly obtain and furnish evidence of such exemption.
8.1 Support Services. While the software subscription for Licensed Software remains effective and any applicable Support Fees are current, Neverfail shall provide the Support Services for the Licensed Software as described in the then-current SSA.
8.2 Other Professional Services. Professional services, other than Support Services including, but not limited to training, consultation, customization and installation are not included under this Agreement or the Support Services but may be separately contracted for under the PSA.
9.1 Ownership. Neverfail retains exclusive ownership and all right, title, and interest in and to the Licensed Software, the Software Subscription License Key, the Intellectual Property and the Neverfail Intellectual Property Rights and reserves all rights not expressly granted hereunder. Subscriber agrees that no implied licenses exist and that it shall not obtain any right in or to any portion of the Intellectual Property or any modifications.
9.2 Maintenance, Support and Installation. All materials and intellectual property created or generated by Neverfail in connection with the performance hereunder, including any maintenance, support and installation information provided to Neverfail by Subscriber and related to the Licensed Software, including reports, methods, processes, notes, designs, code, documentation, memoranda, and other data or materials (excluding any reports, data or other information owned or created by Subscriber), and all right, title and interest in the foregoing, are and shall be owned by Neverfail. Subscriber hereby assigns and agrees to assign to Neverfail all right, title and interest in and to any and all derivative works of the Licensed Software and other materials created or generated in connection with its performance of its obligations under this Agreement.
10.1 Intellectual Property Infringement. Neverfail shall indemnify, defend and hold Subscriber and its Representatives harmless from any third party claim and resulting losses, liabilities, damages, demands, suits, causes of action, judgments, costs or expenses (including court costs and reasonable attorneys' fees) arising out of or in connection with any alleged or actual infringement by the Licensed Software of the Intellectual Property Rights enforceable under the laws of the United States, Canada, Australia, New Zealand or the European Economic Area (but only to the extent such claim is not a result of Subscriber's actions). Neverfail's indemnification obligations hereunder are expressly conditioned on Subscriber (a) providing prompt notice of the claim to Neverfail; (b) giving Neverfail sole control of the defense and settlement of the claim; (c) providing to Neverfail all available information, assistance, and authority to defend; and (d) not having compromised or settled such claim in any way nor having made any admissions with respect to such claim without Neverfail's prior written consent.
10.2 Remedies. Should the Licensed Software become or in Neverfail's reasonable opinion, be likely to become, the subject of a claim of infringement, Neverfail may, at Neverfail's option, (a) procure for Subscriber, at no cost to Subscriber, the right to continue to use the Licensed Software, (b) replace or modify the Licensed Software, at no cost to Subscriber, to make such Licensed Software non-infringing, provided that the similar function is performed by the replacement or modified Licensed Software as originally provided hereunder, or (c) if the right to continue to use the Licensed Software cannot reasonably be procured or the Licensed Software cannot reasonably be replaced or modified, Neverfail may terminate this Agreement.
10.3 Exclusions. Notwithstanding the foregoing, Neverfail shall have no liability for any claim resulting or arising from: (a) any use of the Licensed Software not in accordance with this Agreement or use for which it was not designed, if such claim would not have occurred absent such use; (b) any use of any release of the Licensed Software other than the most current release made available to Subscriber, if the most current release was furnished to Subscriber specifically to avoid such claim and such claim would have been avoided by use of the most current release; (c) any modification of the Licensed Software made by any person other than Neverfail (other than at Neverfail's direction), if such claim would not have occurred absent such modification; (d) a use for which the Licensed Software was not designed and such claim would not have been made absent such non-conforming use; (e) any claim that relates to open source software or freeware technology or any derivatives or other adaptations thereof that is not embedded by Neverfail into the Licensed Software; or (f) any Licensed Software provided on a no charge, beta or evaluation basis.
10.4 No Additional Liability. This Section 10(Indemnification) states the Neverfail's exclusive liability for indemnifying Subscriber for any third-party intellectual property claim or action, and nothing in this Agreement or elsewhere will obligate Neverfail to provide any greater indemnity to Subscriber.
11.1 Confidentiality. Recipient must use the same degree of care in protecting Confidential Information as it uses to protect its own proprietary and confidential materials, but in no event less than a reasonable standard of care. If a party becomes aware of any misappropriation or misuse of Confidential Information, that party must immediately advise the other in writing. If Recipient is required to disclose Confidential Information to any court, government agency or party pursuant to a written court order, subpoena, regulation or process of law, Recipient must first promptly notify Discloser, and Recipient at Discloser's expense will provide reasonable assistance to discloser in seeking a protective order or other remedy from the proper authority. Any such required disclosure does not relieve recipient of its confidentiality obligations. All Confidential Information is and shall remain the property of Discloser.
11.2 Period of Protection. Recipient agrees that upon the Effective Date of this Agreement and for a period of five (5) years from the date of disclosure or termination of this Agreement, whichever is later (and in perpetuity with respect to source code and trade secrets), it will hold the Confidential Information disclosed by Discloser in confidence.
11.3 Restrictions on Disclosure. Subscriber and its employees, agents and contractors shall not disseminate, disclose or otherwise provide or make available the Confidential Information, or any portion or copy thereof, to any third party, or use the Confidential Information or portion thereof for any purpose other than as expressly permitted by this Agreement. Disclosure of the Confidential Information will be restricted to the Recipient's employees, contractors, or agents on a "need to know" basis and who are bound by confidentiality obligations no less stringent than these prior to any disclosure. All Confidential Information that is disclosed in a tangible form by Discloser to Recipient under this Agreement (including, without limitation, documents, writings, designs, drawings, specifications and information incorporated in computer software or held in electronic storage media) shall be returned to Discloser or destroyed promptly upon the termination of this Agreement or upon written request by Discloser, and shall not thereafter be retained in any form by Recipient, except as otherwise provided by this Agreement. Upon request of the Discloser, a duly authorized officer of the Recipient will certify such return or destruction.
11.4 Exclusions. Confidential Information does not include information which: (info) is already known to the Recipient at the time of disclosure; (ii) is or becomes publicly known through no wrongful act or failure of the Recipient; (iii) is independently developed without use or benefit of the other's Confidential Information; or (iv) is received from a third party that is not under and does not thereby breach an obligation of confidentiality.
11.5 Data Privacy. Neverfail may process technical and related information about Subscriber's use of the Licensed Software which may include internet protocol address, hardware identification, operating system, application software, peripheral hardware, and nonpersonally identifiable usage statistics to facilitate the provisioning of updates, support, invoicing or online services and may transfer such information to other companies in the Neverfail worldwide group of companies from time to time. To the extent that this information constitutes personal data, Neverfail shall be the controller of such personal data. To the extent that it acts as a controller, each party shall comply at all times with its obligations under the local legislation applicable in the territory for the protection of individuals with regard to the processing of personal data.
12.1 General Warranty. Neverfail warrants that it owns all right, title, and interest in and to the Licensed Software and that it has full power to enter into and perform this Agreement.
12.2 Limited Warranty. For ninety (90) days from the Delivery Date, Neverfail warrants that the Licensed Software shall substantially conform to the then-current Subscriber Documentation, provided that: (a) the Licensed Software is implemented and operated in accordance with the Documentation and any other written instructions supplied by Neverfail; (b) Subscriber notifies Neverfail in writing of any Error within ten (10) days of the appearance thereof and includes sufficient information as may be necessary to demonstrate the Error; (c) Subscriber has promptly and properly installed all Updates made available by Neverfail to Subscriber; and (d) any defect or nonconformity is not caused in whole or in part by any defect in the hardware, operating system or any other third party software used in conjunction with the Licensed Software.
12.3 Sole Remedy. Neverfail's sole and exclusive responsibility and Subscriber's sole remedy under the Limited Warranty set forth in Section 12.2 shall be for Neverfail to correct or replace, at no additional charge to Subscriber any such Error(s) and to supply Subscriber with a corrected version of the Licensed Software as soon as practicable after Subscriber has notified Neverfail of such Errors. Neverfail's warranty obligations shall be void if the Licensed Software is modified by or through Subscriber without the express prior written consent of Neverfail.
12.4 Limitation of Liability. Neverfail does not warrant that the operation of the Licensed Software will be uninterrupted or error free. NEVERFAIL SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES UNDER ANY PART OF THIS AGREEMENT EVEN IF ADVISED OR AWARE OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRECEDING LIMITATION MAY NOT APPLY. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, NEVERFAIL'S CUMULATIVE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID FOR THE SPECIFIC PRODUCT OR SERVICE GIVING RISE TO SUCH CLAIM DURING THE PRIOR TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE RELEVANT CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER NEVERFAIL OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. NEVERFAIL SHALL NOT BE LIABLE TO SUBSCRIBER FOR ANY CLAIM BROUGHT MORE THAN TWO YEARS AFTER THE CAUSE OF ACTION FOR SUCH CLAIM FIRST AROSE. IF THE APPLICABLE LAW OF the JURISDICTION PROHIBITS ANY LIMITATION IN THIS SECTION, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED AND the remainder of this section shall continue in full force and effect.
12.5 Further Limitations. Neverfail's licensors shall have no liability of any kind under this EULA and Neverfail's liability with respect to any third party software embedded in the Licensed Software shall be subject to Section 12.4.
12.6 Warranty by Subscriber. Subscriber warrants and represents that it has full power to enter into and perform this Agreement and that the person agreeing to or executing this Agreement, either electronically or on paper, on its behalf is duly authorized to do so.
13.1 Term. This Agreement shall commence on the Effective Date and shall continue in effect until: (a) terminated pursuant to Section 13.2 below or (b) terminated pursuant to the Evaluation Expiration Date or the Subscription Expiration Date.
13.2 Termination. Either party may, at its option and upon written notice to the other party, terminate this Agreement if a material breach of this Agreement by the other party is not remedied within thirty (30) days after the breaching party's receipt of written notice of the breach. Subscriber may terminate this Agreement for convenience upon sixty (60) days written notice. An Evaluation License shall automatically terminate on the Evaluation Expiration Date. A Software Subscription shall automatically terminate on its Subscription Expiration Date.
13.3 Effect of Termination. Immediately upon termination of this Agreement under Section 13.2 for breach by Subscriber, upon the Evaluation Expiration Date or upon the Software Subscription Expiration Date: (a) this Agreement and all rights and software subscriptions granted under this Agreement shall terminate; (b) Neverfail shall at its sole option immediately cease providing any Support Services or other professional services to Subscriber; (c) Subscriber shall, at Neverfail's exclusive option, return or destroy: (i) all Licensed Software Documentation and Software Subscription License Keys provided under such terminated software subscriptions and all copies thereof in any form (including translations and compilations), whether partial or complete, and whether or not modified or merged into other software made by Subscriber, and (ii) all Confidential Information of Neverfail and copies thereof and all materials reflecting or referencing such Confidential Information, in whole or in part, in any form. If requested by Neverfail, Subscriber shall certify in writing Subscriber's compliance with this section as to the return or destruction of such materials. Neverfail shall have the right to use reasonable means to verify Subscriber's actual compliance with such certification, including without limitation, reasonable access to Subscriber's facilities to inspect Subscriber's equipment, records and employees. Subscriber shall not be entitled to a refund of any fees paid by Subscriber to Neverfail under this Agreement if the Agreement or the particular software subscription is terminated by Neverfail as a result of Subscriber's breach.
13.4 Survival after Termination. The following shall survive expiration or termination of this Agreement: all confidentiality restrictions, limitation of liability and further limitations, indemnities, sole remedy, disclaimer of warranties, general provisions and all other provisions which by their nature should survive the termination or expiration of the Agreement.
14.1 Governing Law/Venue. This Agreement shall be exclusively governed and construed in accordance with the laws of: (a) the State of Texas without regard to its conflicts of law principles if the Subscriber resides in the United States or (b) England if the Subscriber resides outside the United States. The United Nations Convention on Contracts for the International Sale of Goods (UNCISG) is specifically disclaimed in its entirety. If the Subscriber resides in the United States, the parties agree to submit to the personal and exclusive jurisdiction of the state and federal courts, as applicable, located in the County of Travis, State of Texas, for any dispute arising out of or relating to this Agreement.
14.2 Time Limit for Claims. No action, regardless of form, arising out of this Agreement may be brought by either party more than two (2) years after the cause of action has arisen.
14.3 Attorney Fees. If either party employs attorneys to enforce any rights arising out of or related to this Agreement, the prevailing party shall be entitled to recover its reasonable attorney's fees and costs from the other party.
14.4 Assignment. Subscriber shall not assign or otherwise transfer this Agreement or any rights hereunder to any individual or entity (including, without limitation, a government body, division, agency or administration) without the prior written consent of Neverfail provided, however, that Subscriber may assign all of its rights under this Agreement to (a) a subsidiary of Subscriber, (b) a purchaser of all or substantially all of the stock or assets of Subscriber, or (c) a third party participating in a merger or other corporate reorganization in which Subscriber is a constituent corporation. This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Any purported attempt to assign or transfer this Agreement in violation of this provision will be deemed void.
14.5 No Third Party Beneficiaries / Independent Contractors. This Agreement is not intended nor shall be construed to confer upon or give to any person or entity other than Subscriber and Neverfail any rights, remedies or other benefits under or by reason of this Agreement. The relationship of the parties is that of independent contractors. Nothing in this Agreement is intended or should be construed to create a partnership, agency, joint venture or employment relationship between the parties.
14.6 U.S. Government Rights. The Licensed Software is "commercial computer software" pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement consistent with 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulations ("FAR") and its successors. If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement consistent with 48 C.F.R. 227.7202-1 through 227.7202-4 of the DOD FAR Supplement and its successors.
14.7 Export. The Licensed Software is subject to U.S. export laws as well as the laws of the country where it is delivered or used. Subscriber shall comply with all applicable governmental laws, statutes, ordinances, administrative orders, rules and regulations including, without limitation, those related to the export of technical materials. Certain functionality of the Licensed Software, such as encryption or authentication, may be subject to import restrictions in the event Subscriber transfers the Licensed Software from the country of delivery and Subscriber is responsible for complying with applicable restrictions.
14.8 Publicity. Neither party shall disclose the terms of this Agreement without prior written consent from the other. Subscriber, however, agrees that its name and any logo may be included by Neverfail in any published list of Neverfail Subscribers on the Neverfail website and in other marketing materials.
14.9 Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, acts of terrorists, or any other cause which is beyond the reasonable control of such party.
14.10 Injunctive Relief. The parties agree that a breach of Section 3 (Evaluation License), Section 4 (Software Subscription ), Section 9 (Intellectual Property) or Section 11 (Confidential Information) would result in irreparable and continuing damage for which there will be no adequate remedy at law, and Neverfail shall be entitled to injunctive relief without the need for posting bond and/or a decree for specific performance, and such other relief as may be proper.
14.11 Notices. All notices or reports permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, facsimile transmission, overnight delivery service or by registered mail return receipt requested or first class post, and shall be deemed given upon personal delivery, the next business day for overnight delivery service, five (5) days after deposit in the mail, or upon acknowledgment of receipt of facsimile transmission. Notices shall be sent to the signatory of this Agreement at the address set forth in the opening paragraph of this Agreement or such other address as either party may specify in writing.
14.12 No Waiver; Severability. A party's failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by a court of competent jurisdiction, such unenforceable or invalid provision shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect.
14.13 Modification. This Agreement can be modified only by a written amendment signed by persons duly authorized to sign agreements on behalf of Subscriber and Neverfail, and variance from the terms and conditions of this Agreement in any order or written notification from either party shall be void and of no effect.
14.14 Section Headings. The section headings in the Agreement are solely used for the convenience of the parties and have no legal or contractual effect.
14.15 Entire Agreement. This Agreement together with the then-current SSA, which is incorporated herein and made a part hereof for all purposes and any Purchase Orders constitute the entire agreement between the parties with respect to the subject matter thereof and supersede all prior or contemporaneous agreements, understandings, negotiations and communications, oral or written, between the parties regarding the subject matter of this Agreement. In the event of a conflict between the terms and conditions of the EULA, the SSA or a signed Purchase Order, the controlling order of the documents shall be the EULA, the SSA and then the Purchase Order.