NULLAFI END USER LICENSE AGREEMENT

NULLAFI END USER LICENSE AGREEMENT


1. Definitions.  Capitalized terms used in this Agreement have the meanings set forth in this Section 1, or as defined elsewhere in this Agreement.

Affiliate” means, when used with respect to a party, any legal entity controlled by, controlling, or under common control with that party, where “control” (and its derivatives) means: (a) the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a corporation, person, or other entity through the ownership of voting interests; or (b) direct or indirect ownership in the aggregate of fifty percent (50%) or more of any class of voting or equity interests in such other corporation, person, or entity.

End User” means any person that Licensee permits to access the Product or for which the Product governs End User access or use of other Licensee software.

Documentation” means any manuals, instructions or other documents or materials that Nullafi makes available to Licensee or generally available with the Product. 

User Count” means the total number of End Users that Licensee has declared in the Order. 

Intellectual Property Rights” means all tangible and intangible rights associated with works of authorship throughout the world, including but not limited to, copyrights, moral rights, and mask works; trademarks and trade name rights and similar rights; trade secret rights; patents, designs, algorithms, and other intellectual or industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise; and all registrations, initial applications, renewals, extensions, continuations, divisions, or reissues now or hereafter in force (including any rights in the foregoing) anywhere in the world, that exist as of the Effective Date or hereafter come into existence, regardless of whether or not such rights have been registered with the appropriate authorities in such jurisdictions in accordance with the relevant legislation. 

Product” means the software, including all Updates or Upgrades, which Nullafi provides or makes available to Licensee, as described in an Order Form.

Support” means the licensee support services, if any, as described in the Order Form. 

Update” means either a software modification or addition that, when made or added to the Product, corrects an error or a procedure or routine or other software bug, or adds or modifies features or functions of the Product. An Update is typically identified as a change in version number to the right of the first decimal place in the version number (e.g. 1.2.8 to 1.2.9, or 1.3.0, etc.)

Upgrade” means a revision of the Product released by Nullafi to add new or different functions or to otherwise enhance the Product or create a new product. An Upgrade for which Nullafi would not charge additional fees to a new licensee will be included in Nullafi’s standard customer support offering.  An Upgrade may be identified as a change in version number to the left of the first decimal place in the version number (e.g. 1.2.8 to 2.0, etc.).

2. License Grant and Restrictions

2.1 License.  Subject to Licensee’s compliance with the terms and conditions of this Agreement and timely payment of all applicable fees or any other amounts payable hereunder, Nullafi grants to Licensee during the term of this Agreement  a non-exclusive, non-transferable, non-sublicensable, limited license to install the Product on servers owned or controlled by Licensee and to use the Product solely for Licensee’s internal business purposes in accordance with and subject to the Documentation and the terms and conditions of this Agreement.  All software is licensed and not sold.

2.2. Backup License.  Licensee may make a single copy of the Product for backup purposes, provided that Licensee reproduces on it all copyright and other proprietary notices that are on the original copy of the Product and provided the backup copy is not installed or used on any computer, server or other device except to replace a defective, damaged or lost copy of the original installation of the Product.  Licensee may not transfer any rights in the backup copy of the Product.  

2.3 Restrictions.  The Product is confidential and proprietary to Nullafi and protected by copyright and other bodies of law protecting Intellectual Property Rights. Title to the Product and all associated Intellectual Property Rights is retained by Nullafi and/or its licensors. Except as expressly stated herein, no part of the Product or any Nullafi services or Documentation may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means.   No right, title or interest in or to any trademark, service mark, logo or trade name of Nullafi or its licensors is granted under this Agreement. Licensee may not rent, lease, lend, sell, sublicense, assign (except as expressly permitted herein), distribute, publish, transfer (except as expressly permitted herein) or otherwise make available the Product, or any Documents to any third party including on or in connection with any time-sharing, service bureau, software as a service, cloud or other technology or service.  Licensee agrees not to: (i) misuse the Product or attempt to interfere with, or circumvent, or disable  any technological features or measures in the Product, including those that limit the term of use; (ii) not to attempt or to do any of the following: (a) probe, scan, or test the vulnerability of the Product or use the Product or Documentation for purposes of benchmarking, any competitive analysis thereof, or the development, provision or use of any competing software, product, or service; (b) breach or otherwise circumvent any security or authentication measures; (c) modify, disassemble, decompile or reverse engineer the Product or any Nullafi products or services; (d) copy the Product and/or make any derivative works thereof; (e) delete or in any manner alter the copyright, trademark or service mark, and other proprietary rights notices, if any, of Nullafi and its licensors and/or suppliers  appearing on the Product; or (f) engage in any act or omission that violates any law, statute, ordinance, or regulation (including without limitation the laws and regulations governing export control, unfair competition, anti-discrimination, or false advertising.  

2.4 Audit.  Licensee shall maintain complete, current and accurate records of the location of each copy of the Product software in Licensee’s possession.  Furthermore, Licensee shall maintain complete and accurate books and records showing the number of its employees, including any contractors that are in roles that reasonably would have access to the Product.  For the term of this Agreement and a period of six (6) months thereafter, Nullafi will have the right, upon reasonable prior notice to Licensee, during Licensee’s normal business hours, to audit or have audited Licensee’s books and records for the purpose of verifying the accuracy of payments made under this Agreement and compliance with the terms of this Agreement.  In lieu of the foregoing, Nullafi will have the right to request that Licensee have an officer of Licensee fully document and certify that Licensee’s use of the Product at the time of the audit request is in conformity with the provisions of this Agreement.  Nullafi will bear the costs of any audit it conducts, unless such audit reveals an underpayment in excess of five percent (5%) of the amounts payable to Nullafi or a breach of a material provision of this Agreement by Licensee, in which case Licensee shall bear the reasonable out-of-pocket expenses and costs of such audit.  Such audits shall be conducted no more than once each and all audit materials will be treated as Confidential Information.  

3. Privacy Policy.  In the process of ordering the Product or using any Nullafi services including, but not limited to customer support, Licensee may provide and/or Nullafi may otherwise obtain personal, individually identifiable information.   All use by Nullafi, or its third party processor’s rights to use any personal information are governed by the Nullafi Privacy Policy. The Privacy Policy is incorporated by reference and is part of this Agreement.  

4. Licensee Data and Use.  

4.1 Licensee Data.  For purposes of this Agreement, “Licensee Data” means information, data and other content, in any form or medium, that is owned or processed by Licensee and/or its End Users, which is or may be shielded by the Product.  

4.2 No Nullafi Access.  Once Licensee downloads and installs the Product, Nullafi has no access to the Product or any Licensee Data and the Product does not communicate with Nullafi.  The Product is an on-premises software product and not a SaaS product that operates from Nullafi servers or networks.  The Product installation is on Licensee equipment and Licensee is solely responsible for its use and the security of the systems on which the Product is installed.  Nullafi will have no access to Licensee’s use of the Product and no control or liability for any data breach or security issues arising from Licensee’s use of the Product. Licensee represents and warrants to Nullafi that it has all required permissions, consents or other authorizations required under applicable law in connection with its storage, use and processing of any personally identifiable data, health information or any other data protected by law or regulations Licensee maintains in connection with use of the Product.

4.3 Licensee Data.  As between Licensee and Nullafi, Licensee is and will remain the sole and exclusive owner of all rights, title and interest in and to all Licensee Data, including all Intellectual Property Rights relating therein and thereto. Nullafi has no right, license or authorization with respect to the Licensee Data except as expressly set forth in this Agreement.  All other rights in and to the Licensee Data are expressly reserved by Licensee and Licensee shall remain responsible for the same.

5. Licensee Obligations.  Nullafi will issue Licensee login credentials (which may include keys, certificates, etc.) to enable Licensee to download a copy of the Product for installation on Licensee equipment upon receipt of the Fees (as defined below).  Licensee will be solely responsible for acts or omissions of its End Users, and under no circumstances will Nullafi or any of its licensors or service providers, be responsible, for any loss, damage, or liability arising from activity that occurs through End User accounts, any compromise of Licensee and Licensee End Users’ access credentials, equipment and/or computer networks.

6. Export Compliance. The Product is subject to all applicable export control laws and regulations, including without limitation those of the United States government. Licensee agrees that it will not directly or indirectly export, re-export, divert, release, transfer or disclose the Product to any prohibited or restricted destination, end-use or end-users or to anyone who requires a United States export license or other license, except in accordance with all relevant export control laws and regulations which may require Licensee to obtain necessary licenses, approvals or permissions from the appropriate US governmental authority and all required foreign authorities which may regulate or have jurisdiction over Licensee prior to undertaking such activities.

7. Fees.

7.1 Fees. Licensee will pay Nullafi the fees set forth in the applicable Order and/or as otherwise invoiced by Nullafi (“Fees”).  Unless otherwise specified in the applicable Order, the Fees shall be paid in full within fifteen (15) days of the Effective Date, and, in the instance of renewal, upon the fifteenth (15th) day after the effective date of each renewal term.  Fees are non-refundable and non-cancelable.  Nullafi may increase Fees for any renewal term by providing written notice to Licensee at least sixty (60) calendar days prior to the commencement of such renewal term.  Nullafi will enable Licensee access to download the Product upon receipt of the Fees.  Any undisputed Fees not paid when due will incur interest at the rate of one and one-half percent (1.5%) per month, or the highest rate permitted by applicable law, whichever is less, plus all expenses of collection.  

7.2 Disputed Invoices or Payment Records.  In the event Licensee reasonably and in good faith disputes any Fees set forth on any invoice or record of payment issued by Nullafi, Licensee will notify Nullafi in writing, setting forth the reasons for the dispute and the amount of such dispute (“Dispute Notice”), no later than five (5) days following the receipt of the invoice or record of payment and pay any undisputed amounts when due.  Upon receipt of a Dispute Notice, both parties will promptly make available appropriate personnel to work in good faith to resolve the dispute within fifteen (15) days.  Upon resolution of the dispute by the parties, if there are any additional agreed amounts due from Licensee in relation to the applicable invoice, Licensee will pay such amounts within ten (10) days following such resolution.  If the dispute remains unresolved sixty (60) days after the date of the invoice at issue, either party may declare the other party in breach of this Agreement and pursue any or all legal remedies available to it.   

7.3 Taxes.  Fees are exclusive of all taxes and duties, if any.  Other than federal and state net income taxes imposed on Nullafi’s income, Licensee will bear all taxes, duties, levies, fees and other governmental charges (collectively, “Taxes”) resulting from the Agreement and Licensee’s use of the Services.  Licensee will pay any additional taxes as are necessary to ensure that the Fees received after all such taxes are paid are equal to those specified in the Agreement as if the taxes did not exist.  Licensee is responsible for and must pay any such tax or duty and indemnify Nullafi and hold Nullafi  harmless for any such taxes which Licensee is responsible for.  Licensee will provide Nullafi with appropriate exemption certificates or documentation acceptable to tax authorities in substantiating any claims in tax exemption.

8. Term and Termination.

8.1 Term.  The term of this Agreement will commence on the Effective Date and will continue for the term stated in the Order, unless earlier terminated as provided herein.  This Agreement will survive for so long as any Order remains in effect provided that no new Orders may be executed after the termination or expiration of this Agreement. Either party may terminate this Agreement at any time for convenience when there are no Orders then in effect.

8.2 License Key.  Licensee acknowledges that the Product has a license key that will expire at the end of the term stated in the Order, after which the Product will discontinue operation unless Licensee purchases an additional license key in a new Order for a new term which may be longer or shorter than the previous term as mutually agreed.

8.3 Termination for Cause. Either party may terminate this Agreement, and/or any Order in effect at the time, for cause upon a material breach by the other party, which default either remains uncured for thirty (30) days after written notice thereof is given to the defaulting party or is incapable of being cured, in which case the Agreement shall terminate upon the date of the default notice or such later date specified in such notice, if any. Unless otherwise specifically set forth in the applicable Order, upon the termination or expiration of this Agreement, then each and every Order shall also simultaneously terminate and/or expire. 

8.4 Termination for Other Reasons. Either party may immediately terminate this Agreement and/or any Order in effect at the time, in the event of any of the following: (i) the other party ceases to carry on its business; (ii) the institution of bankruptcy, receivership, insolvency, reorganization or other similar proceedings by or against the other party, if such proceedings have not been dismissed or discharged within thirty (30) calendar days after they are instituted; (iii) the appointment of a receiver for all or substantially all of the other party’s assets; or (iv) any change in applicable laws that make continued performance under this Agreement unlawful or commercially unreasonable. 

85. Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement all rights, licenses, consents and authorizations granted by either party to the other will immediately terminate, including Licensee’s right to use the Product and any Documentation.  All Fees that would have become payable had the Agreement remained in effect until expiration of the then-current term will become immediately due and payable (which shall be considered liquidated damages, and not a penalty), and Licensee shall pay such Fees, together with all previously accrued but not yet paid Fees set forth in this Agreement. 

8.6 Survival. The rights and obligations of the parties contained in this Agreement that would reasonably be considered to survive any termination or expiration of this Agreement shall be deemed to have survived and shall effect the intent of the parties under this Agreement.

9. Licensee Support.  

9.1 Nullafi Support Services.  During the term, and included in the Fees, Nullafi will provide Licensee with its standard Licensee support services, including email access to support representatives for troubleshooting and other Product usage related questions.  Licensee support includes access to all Updates issued by Nullafi during the term specified in the Order.  Nullafi reserves the right to offer to its licensees enhanced licensee support services or other professional services for an additional charge.  Nullafi agrees that during the term of an Order it will not materially diminish the level of licensee support services it offers from those at the start of the Order term.

9.2 Updates and Upgrades. If Nullafi provides Licensee an Update or Upgrade Licensee must possess a valid license to the previous Product version in order to use such Update or Upgrade.  All Updates and Upgrades are provided on a license exchange basis.  Licensee agrees that by using an Update or Upgrade it voluntarily terminates its right to use any previous version of the Product.  As an exception, Licensee may continue to use a previous version of the Product on its server or computer but only to assist in the transition to the Update or Upgrade, provided that:  (i) the Update or Upgrade, as applicable, and the previous Product version is installed on the same computer or server; (ii) the previous version or copies thereof are not transferred to another party, computer or server; and (iii) Licensee acknowledges that any obligation Nullafi may have to support prior versions of the Product ends ninety (90) days after the availability of any Update or Upgrade.

10. Ownership.  The Product and any authorized copies that Licensee may make are the intellectual property of and are owned by Nullafi and its licensors or suppliers. The structure, organization and code of the Product are the valuable trade secrets and Confidential Information of Nullafi and its licensors or suppliers. The Product is protected by law, including without limitation patents, the copyright laws of the United States and other countries, and by international treaty provisions.  Licensee acknowledges and agrees that as between Licensee and Nullafi, Nullafi and its licensors and suppliers retain and own all rights, title and interests in and to all Intellectual Property Rights in (i) the Product, and any other products or services of Nullafi or any other goods or services provided to Licensee under this Agreement and all configurations, derivative works, developments, modifications, adaptations, changes, alterations, edits, conversions, improvements and/or the like made to each or any of the foregoing. All rights not expressly granted under this Agreement are reserved to Nullafi and its licensors and suppliers, and there are no implied rights. Under no circumstances will anything in this Agreement be construed as granting, by implication, estoppel, or otherwise, a right or license to any party’s Intellectual Property Rights or proprietary technology other than in strict accordance with the terms of this Agreement.  Each party reserves all rights not expressly granted to the other under this Agreement. 

10.1 Feedback.  Licensee may choose, but is not obligated, to provide Nullafi with oral or written feedback related to its use of the Product.  Any materials, information, ideas, concepts, feedback and/or know-how provided by Licensee to Nullafi concerning the Product or any Nullafi services or other products (“Feedback”) will be the property of Licensee and Licensee hereby grants Nullafi a perpetual, worldwide, fully transferable, irrevocable, royalty free license to use, reproduce, modify, create derivative works from, distribute and display the Feedback in any manner and for any purpose whatsoever.

11. Confidentiality

11.1 Generally. “Confidential Information” will mean confidential or other non-public proprietary information that is disclosed by either party to the other under this Agreement, including without limitation, any commercial, financial, marketing, business, technical or other data, know-how, or other information which is disclosed either: (a) in tangible form and is marked “confidential” or “proprietary”, or (b) orally or visually, and is designated as confidential or proprietary at the time of disclosure or is of a nature or disclosed in a context that a reasonable person would understand it as confidential or proprietary.  For the avoidance of doubt, all software, software code and designs, hardware, product specifications and documentation, trade secrets, financial data, business, marketing and product plans, or technology, and Licensee information is Confidential Information for purposes of this Agreement.  

11.2 Obligations of Confidentiality.  Each party agrees that it will hold in strict confidence and not disclose the Confidential Information of the other party to any third party and to use the Confidential Information of the other party for no purpose other than the purposes expressly permitted by this Agreement.  Each party will only permit access to the other party’s Confidential Information to those of its or its Affiliates’ employees, contractors and advisors having a need to know and who have signed or are bound by confidentiality obligations or agreements containing terms at least as restrictive as those contained in this Agreement.  Each party will maintain the confidentiality and prevent accidental or other loss or disclosure of any Confidential Information of the other party with at least the same degree of care as it uses to protect its own Confidential Information, but in no event with less than reasonable care.  Neither party is permitted to modify, reverse engineer, decompile, or disassemble any software disclosed by the disclosing party, and no license to any Confidential Information is created beyond any express license grants in this Agreement.

11.3 Exclusions from Obligations.  A party’s obligations of confidentiality under this Agreement will not apply to information if such party can document the information (i) is in the public domain without the breach of any agreement or fiduciary duty or the violation of any law, (ii) was known to the party prior to the time of disclosure without the breach of any agreement or fiduciary duty or the violation of any law, (iii) is proven by contemporaneous written records to be independently developed by the party prior to receiving such Confidential Information and without use or reference to the Confidential Information.

11.4 Legally Required Disclosure.  In the event either party is required to disclose, pursuant to a judicial order, a requirement of a governmental agency or by operation of law, any Confidential Information provided to it by the other party then such party will provide the other party written notice of any such requirement immediately after learning of any such requirement, and take commercially reasonable measures to avoid or limit disclosure under such requirements and to obtain confidential treatment or a protective order and allow the other party to participate in the proceeding.  Any disclosure will be the minimum disclosure as recommended by a party’s legal counsel and no disclosure will remove the obligations of confidentiality to any remaining Confidential Information nor permit any other disclosure of the Confidential Information in other circumstances.   

11.5 Obligation of Confidentiality.  The receiving party’s obligations of confidentiality under this Agreement will survive the expiration or other termination of this Agreement as follows: (i) in the case of a trade secret for so long as such information constitutes a trade secret under applicable law, (ii) in the case of non-public personal information or any Licensee information the period of protection will be indefinitely; and (iii) in all other cases for a period of three (3) years.

11.6 Equitable Relief.  Each party recognizes and acknowledges that any use or disclosure of the Confidential Information of the other party in a manner inconsistent with the provisions of this Agreement may cause the other party irreparable damage for which remedies at law may be inadequate. Accordingly, the non-breaching party will have the right to seek an immediate injunction or other equitable relief in respect of any breach of these confidentiality obligations to obtain such relief. Notwithstanding the foregoing, this paragraph will not in any way limit the remedies in law or equity otherwise available to the non-breaching party.

11.7 Return of Confidential Information.  Upon written request by either party hereto, or at the termination of this Agreement, the other party will promptly return or destroy all documents and other tangible materials representing the requesting party’s Confidential Information and all copies thereof, except for any archived materials that are required to be retained by law or that are not easily retrievable from secured archival systems, or records created in the ordinary course of business that are kept by a party and used only for contract compliance and enforcement purposes subject to continuing confidentiality.  In the case of destruction, the party will provide written certification of such destruction within ten (10) days after the termination of the Agreement.  A party will not be required to delete or destroy electronic copies of Confidential Information generated automatically by archival or data backup systems, so long as such copies are not accessed or used in any manner that violates the terms or conditions of this Agreement.  However, any Confidential Information retained for archival purposes must be stored so that it is not readily accessible by a party’s employees and will continue to be Confidential Information and subject to the terms and conditions of this Agreement for as long as such Confidential Information is retained by the receiving party.

11.8 Statistics.  “Statistics” means any anonymous data, expressly excluding personally identifiable data subject to the Privacy Policy, or Licensee Data that Nullafi derives through its licensee customer support services.  Licensee acknowledges and agrees that Nullafi may use Statistics for the modification, enhancement, and improvement of the Product or its services, and for the marketing or promotion of Nullafi or any future product or service offering, provided any such use of Statistics by Nullafi cannot reasonably be identified as Licensee aggregate information alone.  

12. Representations and Warranties

12.1 Mutual Representations. Each party represents and warrants that: (i) it has the full corporate right, power, and authority to enter into this Agreement and perform the obligations and duties hereunder; (ii) when executed and delivered, this Agreement will constitute the legal, valid, and binding obligation of each party, enforceable against each in accordance with its terms.

12.2 Licensee Representations. Licensee represents, warrants, and covenants that (i) its use of the Product shall comply with all laws, rules, and regulations, including without limitation any and all laws, rules, and regulations and all license terms for any products or services it shields or uses in conjunction with the Product.

12.3 Disclaimer of Warranties.  EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCT AND ANY OTHER SERVICES OR PRODUCTS MADE AVAILABLE UNDER THIS AGREEMENT ARE PROVIDED TO LICENSEE “AS IS,” AND NULLAFI AND ITS LICENSORS, VENDORS, AND/OR SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES, GUARANTEES, PROMISES, REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SYSTEM INTEGRATION, OR CONTENT AND/OR DATA ACCURACY. NULLAFI, ON BEHALF OF ITSELF AND ITS LICENSORS, VENDORS, AND/OR SUPPLIERS, DOES NOT WARRANT THAT THE NULLAFI SERVICES AND/OR PRODUCTS MADE AVAILABLE UNDER THIS AGREEMENT WILL MEET USER REQUIREMENTS, THAT THE OPERATION AND/OR USE OF THE FOREGOING WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY ERRORS WILL BE CORRECTED. LICENSEE ACKNOWLEDGES AND AGREES THAT THE DISCLAIMERS, LIMITATIONS, AND EXCLUSIONS OF LIABILITY SET FORTH IN THIS AGREEMENT FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES, AND THAT, ABSENT SUCH DISCLAIMERS, LIMITATIONS, AND EXCLUSIONS, THE TERMS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE ECONOMIC TERMS, WOULD BE SUBSTANTIALLY DIFFERENT. 

13. Limitations of Liability

13.1 Exclusion of Consequential Damages.  TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR DAMAGES ARISING PURSUANT TO A BREACH OF THE PROVISIONS OF CONFIDENTIALITY, OR BREACH OF ANY APPLICABLE LICENSE GRANT OR RESTRICTION OR THE INFRINGEMENT OR MISUSE OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, USE, DATA OR OTHER ECONOMIC ADVANTAGE AND ANY NON-ECONOMIC LOSSES, EVEN IF A PARTY HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.

13.2 Limitation of Damages.  EXCEPT FOR DAMAGES ARISING PURSUANT TO A BREACH OF THE PROVISIONS OF CONFIDENTIALITY, OR BREACH OF ANY APPLICABLE LICENSE GRANT OR INFRINGEMENT OR MISUSE OF INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY’S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS, LOSSES OR EXPENSES (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, AGENCY, WARRANTY, TRESPASS, OR ANY OTHER THEORY OF LIABILITY, WILL BE LIMITED TO THE FEES PAID AND PAYABLE BY LICENSEE  TO NULLAFI DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION FIRST GIVING RISE TO THE LIABILITY.  

13.3 Allocation of Risk and Material Term.  THIS SECTION 13 WILL SURVIVE TERMINATION OF THE AGREEMENT.  THE PROVISIONS OF THIS SECTION 13 ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND ARE AN INTRINSIC PART OF THE BARGAIN BETWEEN THE PARTIES. THE FEES PROVIDED FOR IN THIS AGREEMENT REFLECT THIS ALLOCATION OF RISKS AND THE LIMITATION OF LIABILITY AND SUCH LIMITATION WILL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.

14. Indemnity For purposes of this Section on indemnity, the following terms shall have the meanings defined herein:

Claims” means all third party claims, actions, demands, and legal proceedings of any kind.

Damages” means all liabilities, damages, losses, judgments, authorized settlements, fines, costs and expenses payable to a third party, including, without limitation, reasonable legal support costs and expenses.

14.1 Nullafi Indemnity.  Nullafi will defend, indemnify, and hold Licensee and its officers, directors, employees, agents and representatives harmless from and against any Claims or Damages awarded by a court of competent jurisdiction as a result of any Claim alleging that the Product infringe such third party’s Intellectual Property Right in the United States.  Such obligations will NOT apply to any infringement claims arising out of, or resulting from: (i) use of other than the then current, unaltered version of the applicable Product, unless the infringing portion is also in the then current, unaltered release  of the Product, (ii) use of the Product or Documentation in combination with any hardware, system, software, network or other materials or service not provided or authorized in writing by Nullafi; (iii) any software, product or service developed in accordance with Licensee specifications if such specifications give rise to the Claim; (iv) any modifications of the Product made by Licensee or any third party if the alleged Claim relates to such modification, (v) a combination of the Product with other products, services, processes or materials of Licensee or any third party where the alleged infringement relates to such combination, (vi) Licensee’s continued alleged infringing activity, after having been notified by Nullafi to cease using the Product.

14.2 Infringement Remedies. In the event that any Product or Documentation, excluding Licensee Data are found by a court of competent jurisdiction to be infringing, or in the event such court enjoins Licensee’s use of the Product, or in Nullafi’s sole and reasonable determination the Product may be infringing, Nullafi, at its option and expense, may either (i) modify or replace the foregoing so that they become non-infringing and have materially the same features and functions, (ii) procure for Customer the right to continue use of the foregoing software or services or if the foregoing a commercially unfeasible, (iii) terminate this Agreement and refund to Licensee on a pro-rata basis the Fees paid by Licensee for the term specified in the Order, and Licensee will immediately terminates its use of the Product and Documentation.

14.3 Licensee Indemnity.  Licensee will defend, indemnify, and hold harmless Nullafi and its officers, directors, employees, agents and representatives from and against any Claims or Damages finally awarded by a court of competent jurisdiction as a result of:  (i) Licensee's alleged or actual use of, misuse of, or failure to use the Product or Documentation in accordance with the terms of this Agreement; (ii) any Claims that Licensee Data violates any third party Intellectual Property Rights or any rights of privacy or publicity; or (iii) that Licensee has violated any applicable law with regard to Licensee Data or Licensee’s use of the Product or Documentation.

14.4 Procedure. As an express condition to the indemnifying party’s obligation under this Section 14, the party seeking indemnification must: (a) promptly notify the indemnifying party in writing of the applicable Claim for which indemnification is sought; and (b) provide the indemnifying party with all non-monetary assistance, information, and authority reasonably required for the defense and settlement of such Claim. The indemnifying party may select counsel for defense of the Claim and direct the course of any litigation or other disputed proceedings concerning the Claim. The indemnified party may select its own counsel and direct its own defense of a Claim if it chooses to do so, but it must bear the costs of its own counsel and any activities in any disputed proceeding conducted by counsel of its choosing. The indemnifying party may settle any Claim, to the extent it only seeks a money payment, with or without the consent of the indemnified party, providing the settlement is a full and complete settlement of all Claims and Damages against the indemnified party. The indemnifying party must obtain the indemnified party’s prior written consent to any settlement to the extent it consents to injunctive relief or requires any admission of fault or any public statement or contains terms governing future activities that would materially affect the indemnified party’s business or interests, said consent not to be unreasonably withheld, conditioned, or delayed.  The indemnifying party’s indemnity obligation will be waived if (i) the indemnified party fails to give the indemnifying party prompt written notice of any claim and such delay limits or forecloses any defense or counterclaim the indemnifying party could have raised but for the delay; or (ii) the indemnified party enters into any settlement without the indemnifying party’s express written consent.

15. General

15.1 Assignment.  Neither party may assign this Agreement without the other party’s prior written consent, except as part of a merger, acquisition, sale of substantially all assets, or similar transaction. Subject to the foregoing, this Agreement shall be fully binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective, permitted successors and assigns. 

15.2 Governing Law.  This Agreement will be governed by and interpreted in accordance with the laws of the State of Illinois as applied to agreements entered into and to be performed entirely within the State of Illinois between Illinois residents, without giving effect to any conflict of law principles that would require the application of the substantive or procedural laws of a different jurisdiction.  In the event that any dispute between the parties arises out of or is related to any of the provisions of this Agreement, and/or the performance or termination thereof, the prevailing party in any such action will recover all of its costs, including reasonable attorneys’ fees. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods (1980) is specifically excluded from application to this Agreement.  Any claims for emergency or preliminary injunctive relief may be brought in any court of competent jurisdiction.  All other disputes, claims or controversy arising out of or relating to this Agreement, or the interpretation, making, performance, breach or termination thereof, will be subject to the exclusive jurisdiction of the Illinois State Courts in Kane County, or if there is federal jurisdiction, the United States District Court for the Northern District of Illinois, and the parties agree to submit to the personal and exclusive jurisdiction and venue of these courts and the parties hereby waive all defenses based upon forum non conveniens, improper venue, or personal jurisdiction.

15.3 Severability.  If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

15.4 Notices.  All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.  The address for each party is stated in the Order.  Either party may change its address for notices under this Agreement by giving written notice to the other party by the means specified in this Section. 

15.5 Force Majeure.  Except for the payment of money due or payable, neither party shall be liable for any failure or delay in performance under this Agreement that might be due to disease, pandemics, strikes, shortages, riots, insurrection, fires, flood, storm, other weather conditions, explosions, acts of God, war, government action, inability to obtain delivery of parts, supplies, or labor, labor conditions (including strikes, lockouts or other industrial disturbances, including as related to pandemic disease), earthquakes, riots or acts of terrorism, or any other cause that is beyond the reasonable control of a party. Any delay or failure of this kind will not be deemed to be a breach of this Agreement and the time for performance of the affected obligation will be extended by a period that is reasonable in the circumstances. A party claiming the benefit of this clause will use reasonable efforts to mitigate the effect of any of the events or circumstances referred to above and will promptly advise the other party of the date by which its performance may reasonably be expected to resume, provided that the unaffected party may terminate this Agreement by written notice to the non-performing party if such condition or delay continues or is reasonably expected to continue for a period of thirty (30) days.

15.6 Independent Contractors.  The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. Neither party shall represent itself as an agent, employee, legal representative, joint venturer, or partner of the other and shall not assume or purport to create any obligation on behalf of the other. 

15.7 Entire Agreement.  This Agreement may not be supplemented, amended, and/or modified at any time unless the parties execute a written instrument that (i) must be in a mutually agreed upon written or electronic format, (ii) must be clearly designated as an amendment, addendum, or modification, and (iii) must be signed by an authorized representative of each party. The parties stipulate and agree that an exchange or series of written or electronic correspondences shall not be deemed to be such a written instrument, for supplemental, amendment or modification purposes. This Agreement, including all schedules, addenda, work modules, exhibits, and/or attachments attached hereto, and/or other documents referred to in this Agreement are hereby incorporated in and made a part of this Agreement and contain the complete understanding and agreement of the parties and supersede all prior or contemporaneous agreements or understandings, oral or written, relating to the subject matter herein. 

15.8 Waiver.  Any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of the parties. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Except where otherwise specified, the rights and remedies granted to a party under this Agreement are cumulative and in addition to, and not in lieu of, any other rights or remedies which the party may possess at law or in equity.

15.9 Publicity.  Neither party may issue press releases relating to this Agreement without the other party's prior written consent.  Each party may include the name and logo of the other party in lists of Licensees or vendors in accordance with the other party's standard guidelines.

15.10 No Third-Party Beneficiaries.  Except as expressly provided in this Agreement, there are no third-party beneficiaries to this Agreement.

15.11 Cumulative Remedies.  Except as expressly provided to the contrary herein, all remedies set forth in this Agreement are cumulative and not exclusive of any other remedies at law or in equity, statutory or otherwise.

15.12 United States Government Rights.  The Product is a “commercial item” as that term is defined at FAR 2.101.  If Licensee or End User is the US Federal Government (Government) Executive Agency (as defined in FAR 2.101), Nullafi provides the Product, including any related software, technology, technical data, and/or professional services in accordance with the following:  If acquired by or on behalf of any Executive Agency (other than an agency within the Department of Defense (DoD), the Government acquires, in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software),  only those rights in technical data and software customarily provided to the public as defined in this Agreement. If acquired by or on behalf of any Executive Agency within the DoD, the Government acquires, in accordance with DFARS 227.7202-3 (Rights in commercial computer software or commercial computer software documentation), only those rights in technical data and software customarily provided in this Agreement.  In addition, DFARS 252.227-7015 (Technical Data – Commercial Items) applies to technical data acquired by DoD agencies.  Any Federal Legislative or Judicial Agency shall obtain only those rights in technical data and software customarily provided to the public as defined in this Agreement.  If any Federal Executive, Legislative, or Judicial Agency has a need for rights not conveyed under the terms described in this Section, it must negotiate with Nullafi to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement to be effective.   This U.S. Government Rights clause in this Section is in lieu of, and supersedes, any other FAR, DFARS, or other clause, provision, or supplemental regulation that addresses Government rights in computer software or technical data under this Agreement.

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