END-USER LICENSE AGREEMENT for Software via Adobe Commerce Marketplace

This End-User License Agreement (this “Agreement”) is entered into between you (the “Customer”) and GlobalLogic, Inc., 2535 Augustine Dr., 5th Floor, Santa Clara, California 95054 USA (“Vendor”). The “Effective Date” of this Agreement is the date that is the earlier of (a) Customer’s initial access to or use of the Software (defined below) or (b) the effective date of the first Order (defined below) referencing this Agreement. If you are agreeing to this Agreement not as an individual but on behalf of a company, government, or other entity for which you are acting (for example, as an employee or governmental official) then “you” means that entity – as the Customer – and you are binding that entity to this Agreement. By clicking on the “I agree” (or similar button or checkbox) that is presented to you at the time of ordering the Software, or by using or accessing the Software, you indicate Customer’s assent to be bound by this Agreement.  If Customer does not agree to this Agreement, do not use or access the Software.

RECITALS

Vendor provides a software application (the “Software”) through the Adobe Commerce Marketplace (defined below) and the parties have agreed that Vendor will provide the Software to Customer. Therefore, in consideration of the mutual covenants, terms, and conditions set forth below, the adequacy of which consideration is hereby accepted and acknowledged, the parties agree as set forth below.

TERMS AND CONDITIONS

1. DEFINITIONS. The following capitalized terms shall have the following meanings whenever used in this Agreement.
   1. “Adobe Commerce Marketplace” means Adobe Inc.’s online marketplace at https://commercemarketplace.adobe.com/ .
   2. “Authorized Users” means all users who obtain the right to access and use the Software from the Customer solely for Customers’ owninternal purposes within the Scope of Use.
   3. “Customer” means the name of the person (i.e., individual or business or government entity) named in the Order, and excluding all other entities, such as Customer’s affiliates, parent company(ies) and subsidiaries.
   4. “Documentation” means the user manual(s) for the Software.
   5. “End Date” means the date of the end of the Term stated on the Order.
   6. “License Fees” are defined in Section 3.1 below. 
   7. “Order” means an applicable ordering documentation or other purchase flow referencing this Agreement.
   8. “Secondary User” is defined in Section 2.5 below.
   9. “Scope of Use” means your authorized scope of use for the Software as specified in the applicable Order, which may include: (a) number and type of Authorized Users, (b) numbers of licenses, copies or instances, or (c) entity, division, business unit, website, field of use or other restrictions or billable units.
   10. “Software” means Vendor’s software that Customer obtains through the Adobe Commerce Marketplace, in object code format, pursuant to the license in this Agreement.
   11. “Specifications” means Vendor’s standard specifications for the Software set forth in its then-current Documentation.
   12. “Term” is defined in Section 10.1 below.
   13. “Third Party Apps” means software applications, plugins and extensions that Customer acquires from a third party(ies), excluding the Software licensed hereunder.
   14. “Upgrade” means a new versions, updates, or upgrades of the Software, in object code format.
2. LICENSES & DELIVERY.
   1. License. Vendor hereby grants Customer a nonexclusive license to use the Software during the Term as provided in the Order and provided that Customer complies with the restrictions set forth in this Agreement, including Section 2.2 below.
   2. Restrictions on Software Rights. Copies of the Software created or transferred pursuant to this Agreement are licensed, not sold, and Customer receives no title to or ownership of any copy or of the Software itself. Furthermore, Customer receives no rights to the Software other than those specifically granted in Section 2.1 above. Without limiting the generality of the foregoing, Customer shall not: (a) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the Software; (b) use the Software for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Software; or (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the Software’s source code.
   3. Documentation: Customer may reproduce the Documentation as reasonably necessary to support internal use of the Software. 
   4. Delivery. Vendor will provide the Software and Documentation to Customer through the Adobe Commerce Marketplace.
   5. Accounts; Authorized Users
      1. Account Registration. Customer must register for an account with Vendor (either directly or indirectly via the Adobe Commerce Marketplace) in order to place Orders or access or receive Software. Customer’s registration information must be accurate, current and complete. Customer must keep Customer’s registration current so that Vendor may send notices, statements and other information to Customer by email or through Customer’s account. Customer is responsible for all actions taken through Customer’s account, including Orders made or Third Party Apps enabled (which may incur fees). 
      2. Authorized Users. Only Authorized Users may access and use the Software.  Customer is responsible for compliance with this Agreement by all Authorized Users, including what Authorized Users do with Customer’s data, and for all fees incurred by Authorized Users.  All use of Software must be solely for the benefit of Customer (except as expressly permitted in Section 2.5(c) below) and must be within the Scope of Use.
      3. Secondary Users. As may be further described in the Documentation, Software may be used as part of Customer’s software, services or other resources related to Customer’s own products. Subject to the terms and conditions of this Agreement, Customer may grant Customer’s own customers’ end users (“Secondary Users”) limited rights to use the Software solely so that they may view and interact with such resources. Customer may not permit Secondary Users to receive or use the Software for purposes unrelated to supporting Customer’s own offerings or grant Secondary Users administrator, configuration or similar use of the Software.  Customer may not charge Secondary Users a specific fee for use of the Software but Customer may charge an overall fee for Customer’s own offerings.  Customer is responsible under Section (b) (Authorized Users) for all Secondary Users as “Authorized Users” and are otherwise solely responsible for Customer’s own products, support offerings and Secondary relationships.  Notwithstanding anything to the contrary in this Agreement, Vendor has no direct or indirect warranty, indemnity or other liability or obligations of any kind to Secondary Users, and Customer warrants and covenants that Customer will notify Secondary Users that Vendor does not warrant, indemnify and have liability.
   6. Attribution. In any use of the Software, Customer must not remove, obscure, or alter in any way the following attribution to Vendor on all user interfaces to the Software: “Powered by GlobalLogic,” which must in every case include a hyperlink to https://www.globallogic.com, and which must be in the same format as delivered bin the Software.
3. FEES. 
   1. Fees. For the licenses granted in Section 2.1 above, Customer shall pay Vendor the license fees for the Software stated on the Adobe Commerce Marketplace (“License Fees”) per Term (initial or renewal, as set forth below in Section 10.1 below), with each payment due before the start of such Term.
   2. Due Date. If not received beforehand, Customer shall pay all License Fees within 30 days of the Effective Date.
   3. Fees for Renewed Terms. No license rights for a renewed Term will go into effect before payment of the applicable License Fees.
   4. Taxes. Amounts due under this Agreement are payable to Vendor without deduction and are net of any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value added tax withheld at the source. If applicable law requires withholding or deduction of such taxes or duties, Customer shall separately pay Vendor the withheld or deducted amount. However, this Section 3.4 does not apply to taxes based on Vendor’s net income.
   5. Additional Services. Fees for Software licenses hereunder do not include Vendor’s services, such as for maintenance, support and/or professional services. If the parties agree that any such other services are to be provided to Customer, then additional fees, as well as separate terms and conditions, shall apply to Vendor’s services.
   6. Third-Party Products and Services. Customer (including Customer’s Authorized Users) may choose to use or procure other third-party products or services in connection with the Software, including Third Party Apps or implementation, customization, training or other services. Customer’s receipt or use of any third-party products or services is subject to a separate agreement between Customer and the third-party provider. If Customer enables or uses third-party products or services (including Third Party Apps) with the Software, then Customer acknowledges that such third-party providers may access or use Customer’s data as required for the interoperation of their products and services with the Software. This may include transmitting, transferring, modifying or deleting Customer’s data, or storing Customer’s data on systems belonging to the third-party providers or other third parties.  Any third-party provider’s use of Customer’s data is subject to the applicable agreement between Customer and such third-party provider.
   7. No Refunds. In the event of the termination of this Agreement, no portion of any payments of any kind whatsoever previously provided Vendor hereunder shall be owed or be repayable to Customer.
4. IP & FEEDBACK.
   1. IP Rights in the Software. Vendor retains all right, title, and interest in and to the Documentation and Software, including without limitation Upgrades, except to the extent of the limited licenses specifically set forth in Sections 2.1 (Licenses) and 2.3 (Documentation). Customer recognizes that the Software and its components are protected by copyright and other laws.
   2. Feedback. Customer hereby grants Vendor a perpetual, irrevocable, worldwide license to use any Feedback (as defined below) Customer communicates to Vendor during the Term, without compensation, without any obligation to report on such use, and without any other restriction. Vendor’s rights granted in the previous sentence include, without limitation, the right to exploit Feedback in any and every way, as well as the right to grant sublicenses. Notwithstanding the provisions of Section 5 (Confidential Information) below, Feedback will not be considered Customer’s Confidential Information. (“Feedback” refers to any suggestion or idea for modifying any of Vendor’s products or services, including without limitation all intellectual property rights in any such suggestion or idea.)
5. CONFIDENTIAL INFORMATION. 
   1. Confidential Information Defined. “Confidential Information” refers to the following information that Vendor discloses to Customer: (a) any document Vendor marks “Confidential”; (b) any information Vendor orally designates as “Confidential” at the time of disclosure, provided Vendor confirms such designation in writing within 15 business days; (c) the non-public features and functions of the Software; and (d) any other nonpublic, sensitive information Customer should reasonably consider a trade secret or otherwise confidential. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Customer’s possession, without restriction, at the time of disclosure as evidenced by the Customer’s files in existence at the time of disclosure; (ii) is independently developed by Customer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction; or (iv) is approved for release in writing by Vendor. Customer is on notice that the Confidential Information may include Vendor’s valuable trade secrets.
   2. Nondisclosure. Customer shall not use Confidential Information for any purpose other than to facilitate the transactions contemplated by this Agreement (the “Purpose”). Customer: (a) shall not disclose Confidential Information to any employee or contractor of Customer unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Customer with terms no less restrictive than those of this Section 5; and (b) shall not disclose Confidential Information to any other third party without Vendor’s prior written consent. Without limiting the generality of the foregoing, Customer shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Customer shall promptly notify Vendor of any misuse or misappropriation of Confidential Information that comes to Customer’s attention. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Customer shall give Vendor prompt notice of any such legal or governmental demand, to the extent permissible in applicable law, and reasonably cooperate with Vendor in any effort to seek a protective order or otherwise to contest such required disclosure, at Vendor’s expense.
   3. Injunction. Customer agrees that breach of this Section 5 would cause Vendor irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Vendor will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
   4. Termination & Return. With respect to each item of Confidential Information, the obligations of Section 5.2 above (Nondisclosure) will terminate 5 years after the date of disclosure; provided that such obligations related to Confidential Information constituting Vendor’s trade secrets shall continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, Customer shall return all copies of Confidential Information to Vendor or certify, in writing, the destruction thereof.
   5. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Vendor will retain all right, title, and interest in and to all Confidential Information.
   6. Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b) (the “DTSA”), Customer is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this Agreement:
      1. IMMUNITY. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that- (A) is made- (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
      2. USE OF TRADE SECRET INFORMATION IN ANTI-RETALIATION LAWSUIT. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual- (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.
6. PRIVACY & DATA. 
   1. Vendor may collect certain data and information from Customer, Authorized Users and Secondary Users in connection with their use of the Software and otherwise in connection with this Agreement.  All such data and information will be collected and used by Vendor in accordance with Vendor’s Privacy Policy, which Customer acknowledges. 
   2. Vendor is not responsible for any access to or use of Customer data by third-party providers or their products or services, or for the security or privacy practices of any third-party provider or its products or services.  Customer is solely responsible for Customer’s decision to permit any third-party provider or third-party product or service to use Customer’s data.  It is Customer’s responsibility to carefully review the agreement between Customer and the third-party provider, as provided by the applicable third-party provider.  VENDOR DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD-PARTY PRODUCTS OR SERVICES (WHETHER SUPPORT, AVAILABILITY, SECURITY OR OTHERWISE) OR FOR THE ACTS OR OMISSIONS OF ANY THIRD-PARTY PROVIDERS OR VENDORS.
7. SOFTWARE AUDIT. During the Term of this Agreement and at any time during the 3 years thereafter, Vendor may audit Customer’s use of Software on 10 days’ advance written notice. Customer shall cooperate with the audit, including by providing access to any books, computers, records, or other information that relate or may relate to use of Software. Such audit shall not unreasonably interfere with Customer’s business activities. If Vendor discovers unauthorized use, reproduction, distribution, or other exploitation of Software, in excess of the copies that would have applied to authorized exploitation, Customer shall reimburse Vendor for the reasonable cost of the audit, or of the next audit in case of discovery without an audit, in addition to such other rights and remedies as Vendor may have. 
8. REPRESENTATIONS & WARRANTIES. 
   1. Each party represents and warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement.
   2. Virus Warranty. Vendor further represents and warrants that it will take reasonable commercial efforts to ensure that the Software, in the form and when provided to Customer, will be free of any viruses, malware, or other harmful code.  For any breach of the foregoing warranty, Customer’s sole and exclusive remedy, and Vendor’s sole obligation, is to provide a replacement copy of the Software promptly upon notice.
   3. Warranty Disclaimers. EXCEPT AS EXPRESSLY STATED HEREIN, VENDOR DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. VENDOR DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE EXTENSION WILL OPERATE WITHOUT ERROR OR THAT IT WILL RUN WITHOUT IMMATERIAL INTERRUPTION OR SECURELY. THE SOFTWARE PROVIDED BY VENDOR HEREUNDER IS PROVIDED “AS IS”. CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS NOT ENTERED INTO THIS AGREEMENT IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE SPECIFICALLY SET FORTH HEREIN. CUSTOMER ASSUMES TOTAL RESPONSIBILITY AND ALL RISKS FOR CUSTOMER’S USE OF ANY EXTENSIONS.
9. LIMITATION OF LIABILITY. 
   1. Dollar Cap. VENDOR’S CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID FOR THE SOFTWARE IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
   2. Excluded Damages. IN NO EVENT WILL VENDOR BE LIABLE FOR (a) WHETHER DIRECT OR INDIRECT, LOSS OF PROFITS, REVENUE, INCOME, SAVINGS OR SHARE VALUE OR LOSS OF BUSINESS OR LOST OR CORRUPTED DATA, LOSS OF USE OF SYSTEM(S) OR NETWORK(S), OR THE RECOVERY OF SUCH, OR LOSS OF GOODWILL OR REPUTATION OR; (b) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
   3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS SECTION 9 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF VENDOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section 9, Vendor’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Vendor’s liability limits and other rights set forth in this Section 9 apply likewise to Vendor’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
10. Term & Termination.
    1. Term. This Agreement will remain in effect from the Effective Date until the End Date (the “Term”). 
    2. Termination for Cause. Vendor may terminate this Agreement for Customer’s material breach by written notice specifying in detail the nature of the breach, effective in 30 days unless the Customer cures such breach, or effective immediately if the breach is not subject to cure.
    3. Effects of Termination. Upon termination of this Agreement, Customer shall cease all use of the Software and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Sections 2.2 (Restrictions on Software Rights), 4 (IP & Feedback), 5 (Confidential Information), 7 (Software Audit), 8.3(Warranty Disclaimers), and 9 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
11. Indemnification
    1. Indemnification by Vendor. Vendor will defend Customer against any claim brought against Customer by a third party alleging that the Software, when used as authorized under this Agreement, infringes such third-party’s copyright, trademark or U.S. patent, or misappropriates any third-party trade secret enforceable in any jurisdiction that is a signatory to the Berne Convention (a “Claim”), and Vendor will indemnify Customer and hold Customer harmless against any damages and costs finally awarded on the Claim by a court of competent jurisdiction or agreed to via settlement executed by Vendor (including reasonable attorneys’ fees), provided that Vendor have received from Customer: (a) prompt written notice of the Claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defense and investigation of the Claim, including providing us a copy of the Claim, all relevant evidence in Customer’s possession, custody, or control, and cooperation with evidentiary discovery, litigation, and trial, including making witnesses within Customer’s employ or control available for testimony; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the Claim. If Customer’s use of the Software is (or in Vendor’s opinion is likely to be) enjoined, whether by court order or by settlement, or if Vendor determine such actions are reasonably necessary to avoid material liability, Vendor may, at Vendor’s option and in Vendor’s discretion: (i) procure the right or license for Customer’s continued use of the Software in accordance with this Agreement; (ii) substitute substantially functionally similar Software; or (iii) terminate Customer’s right to continue using the Software and refund any license fees pre-paid by Customer for use of the Software for the terminated portion of the applicable License Term or, in the case of any “perpetual” licenses, the license fee paid by Customer as reduced to reflect a three (3) year straight-line depreciation from the license purchase date. Vendor’s indemnification obligations above do not apply: (1) if the total aggregate fees received by Vendor with respect to Customer’s license to Software in the twelve (12) month period immediately preceding the Claim is less than US$50,000; (2) if the Software is modified by any party other than Vendor, but solely to the extent the alleged infringement is caused by such modification; (3) if the Software is used in combination with any non-Vendor product, software, service or equipment, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorized use of Software; (5) to any Claim arising as a result of (y) circumstances covered by Customer’s indemnification obligations in Section 11.2 (Indemnification by Customer) or (z) any third-party deliverables or components contained with the Software; (6) to any unsupported release of the Software; or (7) if Customer settles or makes any admissions with respect to a Claim without Vendor’s prior written consent. THIS SECTION 11.1 STATES VENDOR’S SOLE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY SOFTWARE OR OTHER ITEMS PROVIDED BY VENDOR UNDER THIS AGREEMENT.
    2. Indemnification by Customer. Customer will defend, indemnify and hold harmless Vendor from and against any loss, cost, liability or damage (including attorney’s fees) arising from or relating to any claim brought against Vendor (a) arising from or related to Customer’s breach of Section 2.5 (Secondary Users) or any claims or disputes brought by Secondary Users arising out of their use of the Software; (b) by a third party relating to any modifications of the Software (including but not limited to any representations or warranties made about such modifications of the Software) not made by Vendor; (c) by a third party related to Customer’s materials; (d) by a third party relating to any non-Vendor content or data used by Customer or Secondary Users in connection with the Software; or (e) failure to pay applicable taxes to the extent Vendor had not already received from Customer. This indemnification obligation is subject to Customer receiving (i) prompt written notice of such claim (but if not, then to the extent not prejudiced); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonably necessary cooperation of Vendor at Customer’s expense.
12. MISCELLANEOUS.
    1. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
    2. Notices. Notices pursuant to this Agreement shall be sent to the addresses below, or to such others as either party may provide in writing. Such notices will be deemed received at such addresses upon the earlier of (a) actual receipt or (b) delivery in person, by fax with written confirmation of receipt, or by certified mail return receipt requested. For Vendor: Attn: Legal Department, 2535 Augustine Dr., 5th Floor, Santa Clara, CA 95054. For Customer: The address provided as part of the acquisition process through the Adobe Commerce Marketplace. 
    3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
    4. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Vendor’s express written consent. Except to the extent forbidden in this Section 12.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns. Any attempt by Customer to transfer or assign this Agreement except as expressly authorized above will be null and void. Vendor may assign Vendor’s rights and obligations under this Agreement (in whole or in part) without Customer’s consent. Vendor may also permit Vendor’s affiliates, agents and contractors to exercise Vendor’s rights or perform Vendor’s obligations under this Agreement, in which case Vendor will remain responsible for their compliance with this Agreement.
    5. Interpretation. As used herein, “including” (and its variants) means “including without limitation” (and its variants).  Headings are for convenience only. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
    6. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
    7. U.S. Government Restricted Rights. The Software and Documentation are commercial items, as that term is defined in 48 CFR 2.101, consisting of commercial computer software and commercial computer software documentation, as those terms are used in 48 CFR 12.212. If the Software or Documentation is acquired by or on behalf of the U.S. government or by a U.S. government contractor (including without limitation prime contractors and subcontractors at any tier), then in accordance with 48 CFR 227.7202-4 (for Department of Defense licenses only) and 48 CFR 12.212 (for licenses with all federal government agencies), the government’s rights to the Software and Documentation are limited to the commercial rights specifically granted in this Agreement, as restricted by this Agreement. The rights limited by the preceding sentence include, without limitation, any rights to reproduce, modify, perform, display, disclose, release, or otherwise use the Software or Documentation. This Section 12.7 does not grant Customer any rights not specifically set forth in this Agreement.
    8. Informal Resolution. In the event of any controversy or claim arising out of or relating to this Agreement, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under this Agreement pursuant to Section 12.9 (Choice of Law & Jurisdiction). All negotiations pursuant to this Section 12.8 will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.
    9. Choice of Law & Jurisdiction: This Agreement will be governed solely by the internal laws of the State of California, USA including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the terms of the United Nations Convention on Contracts for the Sale of Goods, (c) the Uniform Computer Information Transactions Act (UCITA) will not apply to this Agreement regardless of when or where adopted, or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Santa Clara County, California, USA. This Section 12.9 governs all claims arising out of or related to this Agreement, including without limitation tort claims.
    10. Conflicts. In the event of any conflict between any Order and this main body of this Agreement, this main body will govern.
    11. Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
    12. Technology Export. Customer shall not: (a) permit any third party to access or use the Software in violation of any U.S. law or regulation; or (b) export the Software or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the Software in, or export it to, a country subject to a United States embargo (e.g., Cuba, Iran, North Korea, Sudan, and Syria).
    13. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
    14. Execution in Counterparts. This Agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument.
    15. Amendment. Any Order is subject to the version of this Agreement in effect at the time of the Order. Vendor may modify the terms and conditions of this Agreement from time to time which will be effective the earlier of (a) after 30 days’ notice to Customer or (b) automatically apply as of the renewal date of the next renewal of the applicable license Term unless you elect not to renew. 
    16. System Requirements. Customer is solely responsible for ensuring that Customer’s systems meet the hardware, software and any other applicable system requirements for the Software as specified in the Documentation.  Vendor will have no obligations or responsibility under this Agreement for issues caused by Customer’s use of any third-party hardware or software not provided by Vendor.