This End User License Agreement (this “Agreement”) is a legal agreement between the Keyfactor entity set forth on the applicable Order Form (“Vendor”), and you, either as an individual, company or other legal entity (“Customer”), effective as of the date of the initial Order Form between the Parties (the “Effective Date”). Vendor and Customer may be collectively referred to herein as the “Parties” and each individually as a “Party.”
AL PONER EN FUNCIONAMIENTO, DESCARGAR, INSTALAR O UTILIZAR DE CUALQUIER OTRO MODO EL SITIO WEB SOFTWARE, EL CLIENTE DECLARA QUE HA ADQUIRIDO EL SITIO WEB SOFTWARE DE UNA FUENTE AUTORIZADA Y ACEPTA QUEDAR VINCULADO POR LAS CONDICIONES DEL PRESENTE CONTRATO. SI EL CLIENTE ACEPTA ESTAS CONDICIONES EN NOMBRE DE OTRA PERSONA, EMPRESA U OTRA ENTIDAD JURÍDICA, EL CLIENTE DECLARA Y GARANTIZA QUE TIENE PLENA AUTORIDAD PARA VINCULAR A DICHA PERSONA, EMPRESA O ENTIDAD JURÍDICA A ESTAS CONDICIONES. SI EL CLIENTE DECLINA ACEPTAR TODOS LOS TÉRMINOS Y CONDICIONES ESTABLECIDOS EN EL PRESENTE DOCUMENTO, SE ABSTENDRÁ DE UTILIZAR, DESCARGAR, INSTALAR, REGISTRARSE, DARSE DE ALTA O UTILIZAR DE CUALQUIER OTRO MODO EL SITIO WEB SOFTWARE.
ARTICLE 1. DEFINITIONS
Los siguientes términos, cuando se utilicen en el presente documento, tendrán el significado que se indica a continuación:
“Affiliate(s)” means any legal entity directly or indirectly controlling, controlled by, or under common control with a Party, for so long as such control lasts, where “control” means the direct or indirect ownership of more than 50% of the outstanding voting securities of an entity.
“Aggregated Anonymized Data” means aggregated and anonymized data derived from Customer’s use of the Software that is used by Vendor solely to improve the provision and operation of the Software.
“Applicable Data Privacy Laws” means all worldwide data protection and privacy laws, rules, regulations, directives and governmental or data protection authority decisions applicable to the Customer Personal Data in question.
“Authorized User(s)” means Customer’s employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Software and (ii) for whom access to the Software has been purchased by Customer hereunder.
“Customer Data” means information, data, and other content that is submitted, posted, stored, loaded or otherwise transmitted by or on behalf of Customer or an Authorized User through the Software or otherwise to Vendor.
“Customer Personal Data” means any Customer Data relating to an identified or identifiable natural person or personal data as otherwise defined in Applicable Data Privacy Laws.
“Documentation” means user manuals, handbooks, guides, training materials and other written or visual materials or documentation relating to the Software provided by Vendor to Customer.
“Hardware” means physical devices, appliances, and units of machinery described in an Order Form, including all parts, elements, components thereof and accessories thereto.
“Intellectual Property Rights” means copyrights (including rights in software and computer source code), patents, trademarks, trade names, service marks, business names (including internet domain names), design rights, database rights, know-how, trade secrets and inventions, whether patentable or not, and all other intellectual property or similar proprietary rights of whatever nature (whether registered or not and including applications to register or rights to apply for registration) in any jurisdiction worldwide.
“Order Form” means the applicable order form, quote, statement of work or other ordering document agreed to in writing between Customer and Vendor or a Vendor-authorized reseller for Customer’s purchase of the applicable Software, Hardware and/or Professional Services.
“Professional Services” means the training, implementation and implementation related services and similar services described in any Order Form.
“Software” means each Vendor software product, whether deployed on Customer’s systems or hosted by or on behalf of Vendor, as identified on an Order Form.
ARTICLE 2. ACCESS & USE
2.01 License Grant. Subject to Customer’s payment of fees and the license metrics set forth on the applicable Order Form, Vendor hereby grants Customer a non-exclusive, non-transferable, limited license to access and use the Software and Documentation solely (i) for Customer’s internal business purposes, (ii) during the applicable Subscription Term, and (iii) in accordance with the Documentation and this Agreement.
20.2 Use Restrictions. Customer shall not use the Software or Documentation for any purpose beyond the scope of the access granted in this Agreement or the applicable Order Form. Customer shall not at any time, directly or indirectly, and shall not permit any person to: (a) copy, modify, or create derivative works of or improvements to the Software or Documentation, in whole or in part (provided that Customer may make a reasonable number of copies of the Documentation only for its internal use in connection with its use of the Software); (b) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available or commercially exploit the Software or Documentation; (c) reverse engineer, disassemble, decompile, decode, adapt, make machine code human readable or otherwise attempt to derive or gain access to any software component of the Software, in whole or in part; (d) remove any proprietary notices from the Software or Documentation; (e) use the Software or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right, privacy right or other right of any person, or that violates any applicable law, rule or regulation; (f) introduce, transmit or store malicious or harmful code in the Software; or (g) create, gather or use intelligence from or about the Software for a competitive offering.
2.03 Customer Responsibilities. Customer will be responsible for all uses of the Software and Documentation that arise out of Customer’s direct or indirect provision of access to such Software and Documentation, whether or not Customer’s provision of such access or use is permitted by this Agreement. Customer shall use commercially reasonable efforts to make all Authorized Users aware of this Agreement’s provisions applicable to such Authorized User and cause Authorized Users to comply with such provisions. Customer will be liable for any violation of this Agreement by any Authorized User.
2.04 Vendor Review. For any Software that is not hosted by Vendor, upon Vendor’s request but no more than once per calendar quarter, Customer will send Vendor a complete and accurate report identifying Customer’s monthly usage of the Software for the prior 12-month period in a format reasonably specified by Vendor and in accordance with the license metrics set forth on the applicable Order Form, such as (i) the number of licenses and/or instances of the Software used by Customer, (ii) the number of environments in which Customer has used the Software and/or (iii) the number of digital certificates issued and/or managed by the Software. If Customer’s use of the Software exceeds the license metrics set forth on the applicable Order Form, Vendor may invoice Customer, and Customer shall pay, for such excess use at Vendor’s then current list price. Such charges will be calculated from the date the excess use began through the end of the then-current Subscription Term.
2.05 Professional Services. Vendor may provide certain Professional Services to Customer as set forth on an Order Form. Any such Professional Services will be provided in accordance with the Professional Services Terms and Conditions incorporated herein by reference.
2.06 Hardware. Vendor may provide certain Hardware to Customer as set forth on an Order Form. Any such Hardware will be provided in accordance with the Hardware Addendum to this Agreement incorporated herein by reference.
2.07 Trial Period. If an Order Form includes a trial or proof of concept version of the Software (“Trial Software”), Vendor will make such Trial Software available to Customer for the trial period stated in the applicable Order Form (the “Trial Period”), beginning on the date Vendor first makes the Trial Software available to Customer. The Trial Software may include reduced functionality or usage limits during the Trial Period. Customer may use the Trial Software during the Trial Period solely for internal evaluation in accordance with the Documentation and subject to the access and use restrictions set forth in this Agreement. Unless the Parties agree in writing before the end of the Trial Period to extend the Trial Period, the Trial Period will automatically expire at the end of the Trial Period. Notwithstanding anything to the contrary, either party may terminate a Trial Period at any time without penalty. Termination or expiration of a Trial Period does not create any obligation for Customer to purchase the applicable Software, but if Customer continues to access or use the Trial Software after the Trial Period without entering into an applicable Order Form, Vendor may invoice Customer for such Software at Vendor’s then-current list price, calculated from the expiration or termination of the Trial Period, and Customer will pay such invoice in accordance with the payment terms of this Agreement. Vendor will be under no obligation to provide Customer any support services with respect to the Trial Software. Notwithstanding anything to the contrary, Vendor provides the Trial Software “as is” and “as available” without any warranties or representations of any kind. Customer assumes all risks and all costs associated with its use of the Trial Software. In case of any dissatisfaction with the Trial Software, or Vendor’s breach of the Agreement with respect to such Trial Software, Customer’s sole and exclusive remedy will be termination of the Trial Period. Any obligations on behalf of Vendor to indemnify, defend, or hold harmless under this Agreement are not applicable to Customer’s use of Trial Software.
ARTICLE 3. ORDERING; PAYMENT
3.01 Order Form. Customer and Vendor will enter into an Order Form describing the Software, Hardware, Professional Services, license metrics, fees, and/or other details relating to Customer’s access to and use of the Software. All Order Forms will reference this Agreement and will become part of this Agreement once executed by both Parties. In the event of a conflict, the terms and conditions of each Order Form will take precedence over the terms and conditions of this Agreement, solely with respect to such Order Form.
3.02 Payment of Fees. Customer agrees to pay all fees in accordance with the pricing and terms set forth on the applicable Order Form. If Customer purchases Software through a Vendor-authorized reseller, Customer agrees that it will pay the reseller in accordance with the contract between Customer and the reseller. All fees payable in connection with any renewal of an Order Form or any multi-year anniversary payment are due and payable on or before each annual anniversary of the applicable subscription start date, regardless of when a purchase order, invoice, or other documentation is submitted or received. Any unpaid amounts shall be deemed due as of such anniversary date.
3.03 Taxes. All fees payable under this Agreement are net amounts and are payable in full, in the currency specified in the Order Form, without deduction for taxes or duties of any kind. Customer will be responsible for all taxes and duties of any nature (including but not limited to sales, use and withholding taxes) levied by any governmental authority in connection with the sale or import of Software or Hardware or provision of Professional Services to Customer (collectively, “Taxes”), except for taxes based on Vendor’s net income or employees. If Vendor is required to pay any Taxes and/or fines, penalties or assessments as a result of Customer’s failure to pay such Taxes, the amount of any payments so made, plus the expense of currency conversion (if applicable), shall be promptly reimbursed by Customer upon submission of Vendor’s invoice thereof.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES
4.01 General. Each Party represents and warrants that it: (i) has the right, power, and ability to enter into and perform its obligations under this Agreement; (ii) has and will maintain all necessary rights to grant the rights and licenses that it has granted under this Agreement; and (iii) will perform its obligations under this Agreement in compliance with all laws and regulations applicable to such Party’s performance under this Agreement, including without limitation (a) all applicable export laws regarding the export or re-export of the Software, (b) all Applicable Data Privacy Laws, and (c) all applicable anti-bribery laws.
4.02 Software Warranty. Vendor warrants that, during the applicable Subscription Term, the Software will materially conform to the Documentation when used in accordance with this Agreement. As Customer’s exclusive remedy, Vendor will use commercially reasonable efforts to correct any nonconformity. This warranty does not apply to issues caused by misuse, unauthorized modifications, third-party products or services, or Customer’s failure to implement updates or corrections made available by Vendor.
4.03 Disclaimer. EXCEPT AS EXPRESSLY SPECIFIED IN THIS AGREEMENT OR IN THE APPLICABLE ORDER FORM, EACH PARTY DISCLAIMS All EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
ARTICLE 5. CONFIDENTIAL INFORMATION
5.01 Confidential Information. From time to time during the term of this Agreement, either Party may disclose or make available to the other Party Confidential Information. For purposes of this Agreement, the term “Confidential Information” means (i) all business, technical, financial and other non-public information or data of the disclosing Party or its Affiliates that is directly or indirectly disclosed to or acquired by the receiving Party or any of its representatives in connection with this Agreement, regardless of how such information is conveyed (verbal, written, graphic, electronic, or any other form, or effected through inspection, review, or analysis by either Party), including the Software and Documentation, and (ii) any other information that a reasonable person would consider confidential or proprietary information of the disclosing Party given the nature of the information and the circumstances of disclosure. Confidential Information is protected under this Agreement whether or not it is marked “confidential” or with other words of a similar nature. Confidential Information shall not include information that the receiving Party can establish with reasonable evidence: (a) is or becomes publicly known without a breach of any obligation of non-disclosure by the receiving Party or its representatives; (b) is already known by the receiving Party or its representatives at the time of disclosure; (c) is obtained by the receiving Party or its representatives from a third party who is in lawful possession of such information and not under a duty of confidentiality to the disclosing Party; or (d) is independently developed by the receiving Party or its representatives without use of or reference to the disclosing Party’s Confidential Information.
5.02 Treatment of Confidential Information. During the term of this Agreement and for five (5) years after the termination of this Agreement, each Party will use the other Party’s Confidential Information solely as necessary to perform its obligations or exercise its rights under this Agreement and will not disclose such Confidential Information except as expressly permitted under this Agreement, and will (a) employ all reasonable measures to avoid the unauthorized use or disclosure of the other Party’s Confidential Information consistent with the measures it uses for its own confidential information of the same or similar nature, (b) restrict access to the other Party’s Confidential Information to its own representatives who need to know such information in connection with this Agreement and who are bound by equivalent confidentiality obligations, and (c) promptly notify the other Party if it discovers any unauthorized use or disclosure of the other Party’s Confidential Information and reasonably cooperate with the other Party in its lawful efforts to prevent or remedy such use or disclosure. Notwithstanding the foregoing, the rights and obligations set forth in this Article 5 shall apply to Confidential Information that qualifies as a trade secret (as defined by the Uniform Trade Secrets Act or similar trade secret law) for as long as and to the extent that such Confidential Information remains a trade secret in any jurisdiction worldwide.
5.03 Compelled Disclosure. Notwithstanding anything else herein, each Party may disclose Confidential Information in response to a valid order of a court or other tribunal of competent jurisdiction or authorized government agency. If not prohibited by law or regulatory authority, the receiving Party will provide reasonable notice to the disclosing Party before any such disclosure to permit the disclosing Party to seek to prevent or limit such disclosure.
5.04 Return or Destruction. On termination of this Agreement, the receiving Party shall, at the disclosing Party’s written election, promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, and/or destroy all such copies and confirm in writing to the disclosing Party that such Confidential Information has been destroyed. Notwithstanding the foregoing, the receiving Party may retain copies of Confidential Information maintained in routine archival or backup systems or required to be retained under applicable law, regulation or bona fide internal record-retention policies, provided that any retained Confidential Information remains subject to the confidentiality obligations of this Agreement and is not used for any other purpose.
ARTICLE 6. INTELLECTUAL PROPERTY OWNERSHIP
6.01. Software. Vendor owns and will continue to own all right, title, and interest, including all Intellectual Property Rights, in and to the Software, Documentation, Aggregated Anonymized Data and any modifications, derivatives and integrations thereof and all concepts, methods, and know-how related thereto. Except for licenses expressly granted under this Agreement, nothing in this Agreement grants to Customer or any third party any Intellectual Property Rights or other right, title, or interest in or to the Software or Documentation, and Vendor reserves all rights not expressly granted to Customer herein.
6.02 Customer Data. Customer owns and will continue to own all right, title, and interest, including all Intellectual Property Rights, in and to Customer Data. Customer hereby grants to Vendor a non-exclusive, royalty-free, worldwide license to reproduce, distribute, transmit, store, display and otherwise use Customer Data as may be necessary for Vendor to provide the Software, Hardware and/or Professional Services to Customer.
6.03 Feedback.
From time to time, Customer may choose to submit comments, suggestions, or other feedback to Vendor, including while receiving support or maintenance (“Feedback”). Customer grants Vendor a perpetual, irrevocable, worldwide, royalty-free, transferable and sublicensable license to use, modify, incorporate, disclose and otherwise exploit the Feedback for any purpose without restriction or obligation. Feedback will not be considered Customer’s Confidential Information.
ARTICLE 7. INDEMNIFICATION
7.01 Indemnification by Vendor. Vendor shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, and costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from a claim by a third party (i) that the Software, or any use of the Software in accordance with this Agreement, infringes or misappropriates such third party’s Intellectual Property Rights (“IP Claim”) or (ii) arising out of Vendor’s gross negligence or willful misconduct. This Section 7.01 will not apply to a claim that arises out of (a) use or combination of the Software with data, software, hardware, equipment, or technology not provided by Vendor or specified in the Documentation; (b) use or modification of the Software outside the purpose, scope, or manner of use authorized by this Agreement; or (c) failure by Customer to implement any modification, update or replacement of the Software made available to Customer. If an IP Claim is made or appears possible, Vendor, at Vendor’s sole discretion, may: (x) modify or replace the Software so that it is non-infringing; (y) obtain the right for Customer to continue use of the Software; or (z) terminate this Agreement or the applicable Order Form in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
7.02 Indemnification By Customer. Customer shall indemnify, defend, and hold harmless Vendor from and against any Losses incurred by Vendor resulting from a claim by a third party (i) that Customer Data, or any use of Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s Intellectual Property Rights or (ii) arising out of Customer’s gross negligence or willful misconduct.
7.03 Indemnification Procedure. Each Party (the “Indemnified Party”) shall (i) promptly notify the other Party (the “Indemnifying Party”) in writing of any claim for which it seeks indemnification under this Agreement, (ii) reasonably cooperate with the Indemnifying Party, and (iii) allow the Indemnifying Party to exercise sole authority to control the defense and settlement of such claim, provided that the Indemnifying Party may not settle any claim that imposes liability on or an admission of guilt by the Indemnified Party unless the Indemnified Party consents to such settlement.
7.04 Sole Remedy. THIS ARTICLE 7 SETS FORTH CUSTOMER’S SOLE REMEDIES AND VENDOR’S SOLE OBLIGATIONS WITH RESPECT TO INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND BY THE SOFTWARE OR HARDWARE OR ANY ACCESS TO OR USE THEREOF.
ARTICLE 8. INDEMNIFICATION
8.01 No Indirect Damages. Neither Party shall be liable for any indirect, consequential, incidental, exemplary, special, or punitive damages or any damages for loss of use, data, profits or business arising out of or in connection with this Agreement, whether or not such Party has been advised of the possibility of such damages. Vendor shall not be liable for the cost of substitute or replacement goods or services.
8.02 Limitation of Liability. EXCEPT WITH RESPECT TO (I) A PARTY’S INDEMNIFICATION OBLIGATIONS, (II) A PARTY’S BREACH OF ARTICLE 2 (ACCESS & USE) OR ARTICLE 5 (CONFIDENTIAL INFORMATION), OR (III) FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE SHALL EXCEED THE TOTAL AMOUNT PAID TO VENDOR UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. NEITHER PARTY’S AGGREGATE LIABILITY WITH RESPECT TO ITS INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT SHALL EXCEED ONE MILLION DOLLARS ($1,000,000), INCLUDING WITHOUT LIMITATION ATTORNEYS’ FEES, COURT COSTS, SETTLEMENTS, JUDGMENTS AND/OR REIMBURSEMENT OF COSTS.
ARTICLE 9. TERM AND TERMINATION; SUSPENSION
9.01 Term and Renewal. This Agreement is effective as of the Effective Date and will remain in effect until terminated in accordance with this Agreement. The initial term of each Order Form executed pursuant to this Agreement begins on the effective date set forth in such Order Form and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect for the specified period described therein (the “Initial Term”). Each Order Form shall automatically renew pursuant to the terms of such Order Form, or if not stated therein, for a period of one (1) year following the Initial Term and each successive term thereafter (each, a “Renewal Term” and together with the Initial Term, collectively, the “Subscription Term”) unless either Party gives the other written notice of non-renewal at least sixty (60) days prior to expiration of the Initial Term or Renewal Term, as applicable. For any Renewal Term, unless the pricing on the applicable Order Form is designated as one-time:
(a) if the Renewal Term is a multi-year subscription, the per unit pricing during such Renewal Term will increase by no less than 3% annually on a compounded basis; and
(b) if the Renewal Term is a one-year subscription, the per unit pricing for such Renewal Term will be no less than an 8% increase over the pricing for the prior Initial Term or Renewal Term, as applicable.
9.02 Termination. In addition to any other express termination right set forth in this Agreement:
(a) Vendor may terminate this Agreement or any Order Form, effective on written notice to Customer, if Customer breaches any of its obligations under Article 2 (Access and Use). Vendor will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a termination in accordance with this Section 9.02(a).
(b) Either Party may terminate this Agreement or any Order Form, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.
(c) Either Party may terminate this Agreement or any Order Form, effective immediately upon written notice to the other Party, if the other Party: (a) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (b) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject to any proceeding under any bankruptcy or insolvency law; (c) makes or seeks to make a general assignment for the benefit of its creditors; or (d) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
9.03 Effect of Termination. Upon termination of this Agreement or the applicable Order Form, all licenses and rights granted under Section 2.01 will terminate and Customer will immediately cease all use of the Software and Documentation and uninstall and delete all copies of the Software and Documentation in Customer’s possession or control. Upon Vendor’s written request, Customer will certify in writing that it has complied with the foregoing obligations. Upon termination of any Order Form (but not the Agreement in its entirety), this Agreement will remain in effect and continue to apply to all then-outstanding and subsequent Order Forms.
9.04 Suspension. In addition to the other rights and remedies set forth herein, Vendor may suspend Customer’s and any Authorized User’s access to any portion or all of the Software if Vendor determines that (a) Customer breaches any of its obligations under Article 2 (Access and Use); (b) Customer’s or an Authorized User’s access to or use of the Software is the source of a threat to or attack upon Vendor or any other client or vendor of Vendor; or (c) Customer has failed to pay any undisputed amount when due and such failure continues for thirty (30) days after Vendor provides Customer written notice of nonpayment. Vendor will immediately provide written notice of the suspension to Customer. Vendor will resume providing access to the Software immediately after it determines that the event giving rise to the suspension is cured. Vendor will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a suspension in accordance with this Section 9.04.
9.05 Survival. All terms of this Agreement which by their nature are intended to survive termination of this Agreement will survive termination, including this Article 9 and Articles 1, 3, 5, 6, 7, 8, and 11. No other provisions of this Agreement will survive the termination of this Agreement.
ARTICLE 10. SECURITY; PRIVACY
10.01 Security. Vendor has in place and will maintain throughout the term of this Agreement appropriate technical and organizational measures to ensure the security of the Software and protect Customer Personal Data against unauthorized or unlawful processing, damage or disclosure, details of which can be found at Keyfactor Technical and Organizational Measures.
10.02 Customer Personal Data. The Parties acknowledge and agree that Customer Personal Data processed hereunder will be limited to names, contact details, and online identifiers (e.g., IP addresses) necessary to fulfill the purposes of this Agreement, and Customer will not provide any other personal data or personal information (as such terms are defined in Applicable Data Privacy Laws) to Vendor. Vendor will process such Customer Personal Data only on (i) Customer’s documented instructions under this Agreement and any separate data processing agreement or (ii) as required under Applicable Data Privacy Laws. Vendor will comply with all Applicable Data Privacy Laws in the processing of Customer Personal Data and enter into such additional documentation as the Parties deem reasonably necessary to comply with Applicable Data Privacy Laws.
ARTICLE 11. MISCELLANEOUS
11.01 Entire Agreement. This Agreement, and any other documents incorporated herein by reference, constitute the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersede all prior and contemporaneous understandings or agreements, written or oral, with respect to such subject matter. In no event shall any other provisions, terms or conditions set forth on any purchase order issued by Customer be binding on Vendor unless signed by a duly authorized representative of each Party. No amendment to, modification of, or waiver of rights under this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.
11.02 Notices. Any notice or other communication required or permitted under this Agreement must be in writing and will be deemed duly given: (a) when delivered by hand; (b) three (3) business days after being sent by registered or certified mail, return receipt requested and postage prepaid; (c) one (1) business day after deposit with a nationally recognized overnight delivery or express courier service; or (d) by email, when sent without an automated notice of delivery failure, if sent during the recipient’s normal business hours, or on the next business day if sent outside such hours (provided that a copy is also sent by one of the methods in clauses (a), (b), or (c)). Any such communication to Vendor must be sent to: (i) for physical notices, Keyfactor, Inc., 6150 Oak Tree Boulevard, Suite 200, Independence, Ohio 44131, Attention: Legal Department; and (ii) for electronic notices, [email protected].
11.03 Force Majeure. Neither Party will be liable to the other Party for any failure or delay in performing its obligations under this Agreement (except for Customer’s payment obligations) due to causes beyond such Party’s reasonable control, including but not limited to acts of God, communication line failures, power failures, natural or man-made disasters, war, terrorism, invasion, riot or other civil unrest, strikes, labor disputes, acts or failures to act of any governmental or regulatory body or public authority, including imposing an embargo, or declaring the implementation of a quarantine or the onset or resurgence of an epidemic or pandemic (any of the foregoing, a “Force Majeure Event”). The affected Party shall notify the other Party in writing within ten (10) days after the beginning of any Force Majeure Event, provided that if a Party’s performance under this Agreement is delayed for a period of thirty (30) consecutive days or more, either Party may, without any liability to the other Party, terminate the affected Order Form upon written notice. Any such termination will not affect fees accrued before termination.
11.04 Independent Contractors. The Parties are independent contractors. Nothing in this Agreement creates any agency, partnership, joint venture, fiduciary or employment relationship between the Parties, and neither Party has authority to bind the other Party.
11.05 Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible, and the other provisions of this Agreement will remain in full force and effect. The Parties shall negotiate in good faith to modify such term or provision to achieve their original intent as closely as possible.
11.06 Governing Law; Jurisdiction. Each Party agrees (i) to the applicable governing law in the table below without regard to choice or conflicts of law rules and (ii) to the exclusive jurisdiction of the applicable courts or arbitration bodies in the table below with respect to any dispute, claim, action, suit or proceeding arising out of or in connection with this Agreement or the use of the Software (“Dispute”). To the extent not prohibited by applicable law, each of the Parties hereby irrevocably waives all right to trial by jury in any Dispute. Where the International Chamber of Commerce (“ICC”) is designated in the table below, any Dispute will be settled by binding arbitration in accordance with the ICC Rules of Arbitration (“Rules”) with the seat of arbitration in the location set forth in the table below, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction. The arbitration will be conducted only in English by one or more arbitrators appointed in accordance with the Rules. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
| Customer’s billing address on the applicable Order Form is in: | Governing Law is the laws of: | Court or arbitration body with exclusive jurisdiction: |
| United Kingdom | England and Wales | ICC, London |
| Francia | Francia | ICC, Paris |
| Suiza | Suiza | ICC, Zurich |
| A country in Europe, other than United Kingdom, France or Switzerland | Sweden | ICC, Stockholm |
| Canadá | Ontario, Canada | Courts in Judicial District of York, Province of Ontario |
| All other locations | Delaware, U.S.A. | State and federal courts in Delaware, U.S.A. |
11.07 Assignment. Neither Party may assign this Agreement or any right under this Agreement, without the consent of the other Party, which consent shall not be unreasonably withheld or delayed; provided, however, that either Party may assign this Agreement with prompt written notice to the other Party in connection with the sale of all or substantially all its assets. For clarity, in connection with any assignment or any merger, acquisition, consolidation, reorganization, divestiture, or similar transaction involving Customer or its Affiliates, Vendor may require reasonable amendments to this Agreement or any applicable Order Form, including adjustments to fees, pricing, and applicable usage or license metrics, to reflect any resulting change in the scale or scope of use of or access to the Software. Any use of the Software by or on behalf of any entity not expressly authorized under this Agreement, including as a result of such transactions, shall require Vendor’s prior written approval and may be subject to additional fees. Vendor may also require separate agreements with respect to any divested or newly formed entities. This Agreement shall be binding upon and inure to the benefit of the parties’ successors and permitted assigns. Vendor may engage any of its Affiliates or subcontractors to perform any of its duties under this Agreement, provided that Vendor remains primarily liable for the performance of its obligations hereunder and enters into written agreements with any such subcontractors that contain obligations relating to Confidential Information that substantially align with those undertaken by Vendor in this Agreement.
11.08 Export Regulation. The Software and Hardware use software and technology that may be subject to export/re-export, sanctions, import and customs laws and regulations, including EU and U.S. sanctions and export regulations (“Sanctions Laws”). Customer agrees to comply with all applicable Sanctions Laws and shall not, directly or indirectly, export, re-export, release, or otherwise make available the Software, Hardware, or the underlying software or technology to or from any jurisdiction or country to which export, re-export, or release is prohibited by Sanctions Laws. Upon request, Customer agrees to provide Vendor with the destination of the end use of the Software and/or Hardware and location of all Authorized Users.
11.09 Waiver. A failure by either Party to exercise any rights, remedy, power, or privilege arising from this Agreement will not operate or be construed as a waiver thereof, and no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
11.10 Affiliate Adoption. A Vendor Affiliate and/or Customer Affiliate may adopt the terms of this Agreement by entering into an Order Form which references and incorporates this Agreement. The Parties agree that the entities identified in any such Order Form adopt the terms of this Agreement as if they were the original contracting parties hereto.