Updated: Tuesday, October 01, 2013 - 09:54 GMT
By accessing or otherwise using the OutSystems PaaS trial version (“PaaS”) on the Effective Date, you (“you” or, “End-Customer”) accept and agree to be bound by the following terms and conditions (“Agreement”). If you are entering this Agreement solely on behalf of a company and/or other legal entity or party, you represent and warrant that you have the legal authority to bind such company, legal entity and party to this Agreement, in which case "you" or “End-Customer” shall mean such company, legal entity and party. This Agreement is a legal agreement between you and OutSystems (“OutSystems”). If you do not agree with these terms and conditions, do not use the Paas.
1 - DEFINITIONS
1.1 In this Agreement, capitalized terms shall have the following meanings:
1.1.1 “Activation Code” means, a serial number issued to End-Customer by OutSystems to activate one PaaS. End-Customer acknowledges and accepts that each Activation Code provided by OutSystems has an expiration date ("Expiration Date").
1.1.2 “Confidential Information" refers to non-public information that either Party may obtain from the other or have access to by virtue of this Agreement, including, but not limited to, each Party’s data and each Party’s proprietary software and computer operations, all code, inventions, algorithms, business concepts, workflow, business and technical information, the terms and pricing under this Agreement, and all information clearly identified as confidential.
1.1.3 “Content” means software (including machine images), applications, online service, feature, technology, data, text, audio, video, images or other content.
1.1.4 “Effective Date” means the date on which End-Customer has accepted this Agreement.
1.1.5 “Named User” means an individual authorized by End-Customer to access the PaaS and use the Software included in it through the assignment of a credential.
1.1.6 “Non-Production Environment” means a software Environment that shall be used exclusively for development or test activities, and not for any business operations of the End-Customer or its Users.
1.1.7 “PaaS” means the combined service of providing access to the Software in a Server managed by OutSystems on a Non-Production Environment for trial by End-Customer under this Agreement.
1.1.8 “Software” means OutSystems Platform version made available to End-Customer on a Non Production Environment through PaaS, under this Agreement.
1.1.9 “Server” means a single instance of an operating system used to execute the Software, independently of executing on physical or virtual hardware.
1.1.10 “Subscription” means the joint provision of Software licenses and Services by OutSystems order by End-Customer under a separate agreement.
1.1.11 Support” means any Software support services provided by OutSystems as detailed in this Agreement and in the terms and conditions, of which the most recent version is available at www.outsystems.com/goto/outsystems-support-terms.
1.1.12 “Update” means a modification made by OutSystems to the Software and provided to End-Customer subject to the terms and conditions of this Agreement. Updates shall not include any version, option, or future products provided by OutSystems not included in the Subscription.
1.1.13 “User” means a Named User.
1.1.14 Capitalized terms not defined in this section 1.1 shall have the meanings set forth elsewhere in the Agreement.
2 - LICENSE AND USE OF THE PAAS TRIAL
2.1 “License”. Subject to the terms and conditions of this Agreement, OutSystems hereby grants End-Customer a non-exclusive, non-transferable, non-sublicenseable, revocable license, royalty-free, solely, to use the PaaS and the Software made available through the use of PaaS, for internal testing, evaluation and non production purposes on a Non Production Environment, during the Expiration Date.
2.2 Manner of use. End-Customer may use the Software and the PaaS only in accordance with this Agreement. End-Customer agrees not to use or permit use of the PaaS, including by uploading, emailing, posting, publishing or otherwise transmitting any material, including End-Customer’s Content, Application Components and third party Content for (a) production purposes; for any purpose that may (b) menace or harass any person or cause damage or injury to any person or property, (c) involve the publication of any material that is false, defamatory, harassing or obscene, (d) violate privacy rights or promote bigotry, racism, hatred or harm, (e) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (f) constitute an infringement of intellectual property or other proprietary rights, or (g) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to OutSystems under this Agreement, OutSystems reserves the right, but has no obligation, to take remedial action if any material violates the foregoing restrictions, including the removal or disablement of access to such material. OutSystems shall have no liability to End-Customer in the event that OutSystems takes such action. End-Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of End-Customer Content. End-Customer agrees to defend and indemnify OutSystems against any claim arising out of a violation of End-Customer’s obligations under this Section.
2.3 End-Customer’s Account. Upon registration and acceptance of this Agreement, End-Customer will receive an Activation Code key that will allow it to create an account in the PaaS Environment and access to PaaS Trial. End-Customer will be issued one or more credentials (collectively, “Keys”) for accessing the PaaS and managing End-Customer’s account. Access may not always be available. End-Customer may not sell, transfer, sublicense or otherwise disclose your Activation Code and/or Keys to any other party or use them with any third party application(s), technology, website(s) or property. End-Customer is responsible for maintaining the secrecy and security of its Activation Code and/or Keys. End-Customer is fully responsible for all activities that occur using its Activation Code and Keys, regardless of whether such activities are undertaken by End-Customer or a third party. End-Customer shall notify OutSystems immediately if believed its Activation Code and/or Keys have been compromised or misappropriated in any way, including, without limitation, by a third party.
2.4 “Evaluation Feedback”. The purpose of this limited license is the testing and evaluation of the PaaS. In furtherance of this purpose, End-Customer shall provide feedback to OutSystems concerning the functionality and performance of the PaaS from time to time as reasonably requested by OutSystems, including, without limitation, identifying potential errors and improvements. Such feedback will be in a manner convenient to End Customer and will be subject to reasonable availability of End-Customer's personnel. Feedback and other information which is provided by End-Customer to OutSystems in connection with the PaaS or this Agreement may be used by OutSystems to improve or enhance its products and, accordingly, OutSystems shall have a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit such feedback and information without restriction.
2.5 No Support. OutSystems has neither duty nor obligation to provide Support or Updates.
2.6 Service Level. There is no service level availability commitment of any sort applicable to PaaS under this Agreement.
3 - END-CUSTOMER RESPONSIBILITIES
3.1 End-Customer obligations. End-Customer shall:
(i) be responsible for its, and its employees’, agents’ and contractors’ compliance with this Agreement;
(ii) use all commercially reasonable efforts to prevent unauthorized access to or use of the Software and the PaaS and notify OutSystems promptly of any such unauthorized access or use;
(iii) control access by its Users and be responsible for their use of the Software and PaaS in accordance with this Agreement;
(iv) to maintain the confidentiality of any non-public authentication credentials associated with its use of the Software and the PaaS. End-Customer must promptly notify OutSystems about any possible misuse of its accounts or authentication credentials, or any security incident related to either the Software or the PaaS.
3.2 End-Customer’s Content. End-Customer is solely responsible for the content of its Content. As part of the license granted to End-Customer under this Agreement, End-Customer may upload to the PaaS Non Production Environment some Content, for the purpose of evaluating the performance of PaaS with such Content. End-Customer acknowledges and agrees that End-Customer, and not OutSystems, is entirely responsible for all Content that it uploads or otherwise transmits via the PaaS. OutSystems will have no liability for any such Content, including without limitation the use or inability to use such Contents with the PaaS, the performance of PaaS with such Content, or any loss or damage to such Content. OutSystems does not pre-screen or monitor or control the Content and, as such, does not guarantee the accuracy, integrity, quality or lawfulness of such Content. By uploading Content End-Customers warrants and represents that it owns or are authorized to exercise all of the rights to its Contents necessary to upload and use the Content on PaaS, and further warrants and represents that the Content and the access to and/or use of such Content does not infringe upon, misappropriate, or otherwise infringe any intellectual property, proprietary, privacy or other rights of any third parties and End-Customer hereby grants OutSystems all rights necessary to host such Content in connection with the PaaS. OutSystems does not and will not accept any obligations set forth in any separate license or other agreement that may apply to End-Customer’s Content or Application Components.
3.3 Restrictions. End-Customer may not (and will not allow any third party to):
(i) sell, rent, lease, license, sublicense, distribute, pledge, assign or otherwise transfer in whole or in part the Software, the PaaS, the Activation Code or any interest in them to another party;
(ii) provide, disclose, divulge or make available to, or permit use of the Software and the PaaS in whole or in part by any third party without OutSystems’ prior written consent;
(iii) modify, translate, adapt or create derivative works based on the Software, the PaaS and/or the activation Code;
(iv) export or re-export the Software and/or the PaaS or any derivative work thereof;
(v) remove or modify any markings or any notice of OutSystems’ proprietary rights;
(vi) use the Software or the PaaS to develop, test, host, or run and operate applications on behalf of third-parties to this Agreement, without OutSystems’ prior written consent;
(vii) use the Software and/or the PaaS to provide third party training;
(viii) disclose results of any Software and/or PaaS benchmark tests to any third party without OutSystems’ prior written consent;
(ix) use the Software and/or the PaaS in any way that is contrary to the terms and conditions of this Agreement; or
(x) use the Software and/or the PaaS for any unlawful purposes. Except to the extent expressly permitted by this Agreement or applicable law, and to the extent that OutSystems is not permitted by that applicable law to exclude or limit the following rights, End-Customer may not decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the Software, in whole or in part.
3.4 Compliance. By using the PaaS End-Customer agrees to comply with all applicable domestic and international laws, statutes, ordinances and regulations that govern its use of Paas. End-Customer also agrees to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside, and to comply with any other local laws affecting the transmission or posting of its Content or affecting the privacy of persons. Further, End-customer agrees to comply with all applicable export or import laws of the United States and any other applicable country. Failure to comply with this Section may result in deletion of the offending Content without prior notice and/or termination of End-Customer’s use of the PaaS under this Agreement
4 - INTELLECTUAL PROPERTY RIGHTS, OWNERSHIP AND TITLE
OutSystems retains all right, title, and interest in and to the PaaS Trial (and any copies thereof), the Activation Code, the Keys and in all related copyrights, trade secrets, patents, trademarks, and any other intellectual and industrial property and proprietary rights, including registrations, applications, renewals, and extensions of such rights. End-Customer is not granted any rights to any trademarks or service marks of OutSystems. End-Customer hereby makes all assignments and waivers necessary to accomplish the foregoing ownership. End-Customer shall assist OutSystems to further evidence, record and perfect such assignments, and to perfect, obtain, maintain, enforce and defend any rights assigned. Nothing in this Agreement shall be interpreted to grant (by implication or otherwise) any license or rights to End-Customer except as expressly stated herein. End-Customer hereby grants a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the PaaS any suggestions, enhancement requests, recommendations or other feedback provided by End-Customer to OutSystems, relating to the operation of the PaaS Trial. OutSystems retains all rights not expressly granted to End-Customer in this Agreement.
5 - INDEMNIFICATION
In the event that a claim, demand, suit, or proceeding for the infringement of third party Intellectual Property is made or intimated against OutSystems in relation to End-Customer’s Content, End-Customer shall defend and hold OutSystems harmless against any such claim, demand, suit, or proceeding, as well as indemnify OutSystems against any and all costs, expenses, damages or other losses suffered or payments made by OutSystems in connection with the claim, demand, suit, or proceeding and any associated judgment or settlement provided in each case that OuutSystems gives prompt written notice, cooperation and assistance to End-Customer relative to any such claim, demand, suit or proceeding.
6 - THIRD PARTY / RESELLER SOFTWARE AND SUPPORT
6.1 Terms and Conditions. As part of certain PaaS offerings, OutSystems may provide to End-Customer access to third party Content. The third party owner, author or provider of such third party Content retains all ownership and intellectual property rights in and to that content, and End-Customer’s rights to use such Third Party Content are subject to, and governed by, the terms applicable to such Content as specified by such third party owner, author or provider.
6.2 Third-Party Software Warranty and Liability Disclaimer. OUTSYSTEMS DOES NOT PROVIDE ANY WARRANTY OR ASSUME ANY LIABILITY FOR ANY THIRD PARTY / RESELLER CONTENT AND / OR RELATED SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OUTSYSTEMS BE LIABLE TO END-CUSTOMER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, GOODWILL, DATA OR DATA USE), WHICH IN ANY WAY MAY ARISE OUT OF OR RELATE TO ANY THIRD PARTY OR RESELLER SOFTWARE LICENSE AND / OR RELATED SERVICES.
7 - CONFIDENTIALITY
7.1 Use and Disclosure. During this Agreement and for a period of 5 years following its termination, each Party shall hold in confidence and not use for any purposes unrelated to this Agreement or disclose to any third party (except the Party’s employees, agents or contractors who have a need to know and who are subject to confidentiality obligations at least as restrictive as those herein) any Confidential Information of the other Party. Each Party agrees to take all reasonable steps to ensure that the Confidential Information is not disclosed or distributed by its employees, contractors or agents in violation of the terms of this Agreement.
7.2 Permitted Disclosures. Either Party may disclose Confidential Information of the other Party either (i) in response to a valid order by a court or other governmental or regulatory body, (ii) as otherwise required by law, or (iii) as necessary to establish the rights of either Party under this Agreement; provided such Party promptly notifies the other Party of such request and allows it the opportunity to object or to seek a protective order.
7.3 Non-Confidential Information. The Parties shall not be obligated under this “CONFIDENTIALITY” clause with respect to Confidential Information that: (i) is or becomes a part of the public domain through no act or omission of the receiving Party; (ii) was in the receiving Party’s lawful possession without restriction prior to the disclosure and had not been obtained by the receiving Party either directly or indirectly from the disclosing Party; (iii) is lawfully disclosed to the receiving Party by a third party without restriction on the disclosure; or (iv) is independently developed by the receiving Party without access to the Confidential Information.
7.4 Destruction or Return. Except as otherwise authorized or required in furtherance of the purposes of this Agreement, promptly upon a request by the disclosing Party, the receiving Party will destroy (and so certify it in writing) or return to the disclosing Party all Confidential Information and all documents or media containing any such Confidential Information and all copies or extracts thereof.
8 - DATA PROTECTION AND USAGE DATA
In the event OutSystems has access to information relating to an identified or identifiable natural person through the execution of this Agreement (“Personal Data”), OutSystems shall process any Personal Data at all times in full compliance with the applicable data protection laws and in accordance with section 6 above (“Confidentiality”).
9 - TERM AND TERMINATION
9.1 Term of Agreement. This Agreement shall commence on the Effective Date and continue until the Expiration Date.
9.2 Termination. Either Party may terminate this Agreement at any time for any reason or no reason by providing the other Party advance written notice thereof. End-Customer agrees that OutSystems, in its sole discretion, may terminate End-Customer’s password, account (or any part thereof) or use of PaaS, and remove and discard any contents within the PaaS if OutSystems believes that End-Customer has breached or acted inconsistently with the letter or spirit of this Agreement. End-Customer agrees that any termination of its access to the Software and/or to the PaaS under any provision of this Agreement may be effected without prior notice, and acknowledges and agrees that OutSystems may immediately deactivate or delete End-customer’s account and all related information and files in its account and/or bar any further access to such files, the Software and/or the PaaS.
9.3 Effect of Termination. Upon any expiration or termination of this Agreement, the rights and licenses granted to End Customer under this Agreement shall immediately terminate, the PaaS and End-Customer’s use of the Software shall be automatically cancelled and thus End-Customer shall have access neither to the PaaS, nor the Software. OutSystems is not liable for any damages incurred by End-Customer or any third parties as a result of the termination of End-Customer’s use of the Software and the PaaS in conformity with this” TERM AND TERMINATION” clause. Termination or expiration is not an exclusive remedy and all other remedies will be available whether or not termination occurs.
10 - DISCLAIMER OF WARRANTIES
OutSystems does not promise that the Software and/or PaaS will be uninterrupted, error-free, or completely secure. End-Customer acknowledges that there are risks inherent in Internet connectivity that could result in the loss of End-Customer’s privacy, Confidential Information and/or Content. OutSystems has no obligation to provide security other than as stated in this Agreement. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND PAAS ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUTSYSTEMS DOES NOT GUARANTEE OR WARRANT THAT THE SOFTWARE, AND/OR PAAS WILL PERFORM ERROR-FREE OR UNINTERRUPTED OR THAT OUTSYSTEMS WILL BE ABLE TO CORRECT ANY SOFTWARE AND/OR PAAS ERRORS. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE OR NON INFRINGEMENT.
11 - LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, GOODWILL, DATA OR DATA USE) ARISING FROM THIS AGREEMENT, WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUTSYSTEMS WILL NOT BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) END-CUSTOMER’S INABILITY TO USE THE SOFTWARE AND/OR PAAS, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR END-CUSTOMER’S USE OF OR ACCESS TO THE SOFTWARE AND/OR PAAS OR, (II) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SOFTWARE AND/OR PAAS FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY END-CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR END-CUSTOMER’S USE OF OR ACCESS TO THE SOFTWARE AND/OR PAAS; (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF END-CUSTOMER’S CONTENT OR OTHER DATA, OR (E) FOR ANY REASON BEYOND ITS CONTROL, AS MAY BE THE CASE.
12 - FORCE MAJEURE
Non-performance of either Party will be excused to the extent that performance is rendered impossible by strike, fire, flood, earthquake, government acts or orders or restrictions, failure of supplier, internet service provider failures or delays, denial of service attacks or any other reason where the failure to perform is beyond the reasonable control of and not caused by the negligence or intentional acts or omissions of the non-performing Party.
13 - CONTRACTING OUTSYSTEMS COMPANY, NOTICES, GOVERNING LAW AND JURISDICTION
13.1 General. The applicable OutSystems entity with which End-Customer is contracting under this Agreement, to whom End-Customer should direct notices under this Agreement, the governing law applicable to this Agreement, including any lawsuit or disputes arising out of or in connection with it, and which courts can adjudicate any such lawsuit, shall be determined as set forth below based on where End-Customer is located as set forth in its signature block below.
If End-Customer is domiciled in: A Country in North, South or Central America or in the Caribbean
End-Customer is contracting with: OUTSYSTEMS INC., a legal entity with its registered office at 5901 Peachtree Dunwoody Road, N.E., Building C, Suite 495, Atlanta, GA 30328, USA.
Notices should be addressed to: OUTSYSTEMS INC. 5901 Peachtree Dunwoody Road, N.E., Building C, Suite 495, Atlanta, GA 30328, USA. Attention: Board of Directors, Legal Department.
The governing law is: The Laws of the State of California and controlling United States federal law
The courts having exclusive jurisdiction are: The courts of the State of California, located in Atlanta, Fulton County , U.S.A. albeit not until Parties have made a serious and reasonable effort to come to an amicable agreement by means of mediation submitted to and pursuant to the rules of JAMS. The Parties will cooperate with JAMS and with one another in selecting a mediator from JAMS panel of neutrals, and in scheduling the mediation proceedings. The Parties covenant that they will participate in the mediation in good faith, and that they will share equally in its costs. Either Party may seek equitable relief prior to the mediation to preserve the status quo pending the completion of that process.
If End-Customer is domiciled in: Portugal
End-Customer is contracting with: OUTSYSTEMS - SOFTWARE EM REDE, S.A.,a legal entity with its registered offices at Rua Central Park, Ed. 6, 2.ºA, 2795-242 Linda-a-Velha, Portugal, registered with the Trade Register of the Chamber of Commerce of Cascais, under number 504 995 634, with a share capital of EUR 1.369.961
Notices should be addressed to: OUTSYSTEMS – SOFTWARE EM REDE, S.A., Rua Central Park, Ed. 6, 2.ºA, 2795-242 Linda-a-Velha, Portugal. Attention: Board of Directors, Legal Department.
The governing law is: The laws of Portugal.
The courts having exclusive jurisdiction are: The courts of Lisbon, albeit not until Parties have made a serious and reasonable effort to come to an amicable agreement. Either Party may seek equitable relief to preserve the status quo pending the completion of such amicable agreement.
If End-Customer is domiciled in: A Country in Asia or Oceania
End-Customer is contracting with: OUTSYSTEMS SINGAPORE PTE. LTD., a legal entity with its registered office at 16 Raffles Quay, #33-03, Hong Leong Building, Singapore 048581, Singapore, registered with the Accounting and Corporate Regulatory Authority (ACRA) of Singapore.
Notices should be addressed to: OUTSYSTEMS SINGAPORE PTE. LTD., 16 Raffles Quay, #33-03, Hong Leong Building, Singapore 048581, Singapore. Attention: Board of Directors, Legal Department.
The governing law is: The Laws of Singapore.
The courts having exclusive jurisdiction are: The courts of Singapore, albeit not until Parties have made a serious and reasonable effort to come to an amicable agreement within 30 days from the occurrence of any controversy, claim or dispute arising out of or relating to this Agreement.
If End-Customer is domiciled in: A Country in Europe (with the exception of Portugal, United Kingdom and Ireland), the Middle East or Africa
End-Customer is contracting with: OUTSYSTEMS BENELUX B.V., a legal entity with its registered seat at Utrecht, with its offices at Planetenbaan 16, 3606 AK Maarssen, registered with the Trade Register of the Chamber of Commerce of Utrecht, under number 30204459.
Notices should be addressed to: OUTSYSTEMS BENELUX B.V., Planetenbaan 16, 3606 AK Maarssen. Attention: Board of Directors, Legal Department.
The governing law is: The Laws of The Netherlands.
The courts having exclusive jurisdiction are: The courts of Utrecht, albeit not until Parties have made a serious and reasonable effort to come to an amicable agreement by means of IT mediation pursuant to the IT Mediation Regulations of the Stichting Geschillenoplossing Automatisering (SGOA; Foundation for the Settlement of Automation Disputes) in The Hague. Either Party may seek equitable relief prior to the mediation to preserve the status quo pending the completion of that process.
If End-Customer is domiciled in: United Kingdom or Ireland
End-Customer is contracting with: OUTSYSTEMS LIMITED, a legal entity with its registered office at One Euston Square, 40 Melton Street, London NW1 2 FD, United Kingdom, registered with the Registrar of Companies for England and Wales, under number 8360814.
Notices should be addressed to: OUTSYSTEMS LIMITED, One Euston Square, 40 Melton Street, London NW1 2 FD, United Kingdom. Attention: Board of Directors, Legal Department.
The governing law is: The Laws of England and Wales.
The courts having exclusive jurisdiction are: The courts of England and Wales, albeit not until Parties have made a serious and reasonable effort to come to an amicable agreement within 30 days from the occurrence of any controversy, claim or dispute arising out of or relating to this Agreement.
13.2 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder or required by law must be in writing and must be delivered: (i) in person, (ii) by first class registered mail, or air mail, as appropriate, posted and fully prepaid to the appropriate address set forth in this section and the applicable Order, (iii) via facsimile (to the number set forth in this section and/or the applicable Order), (iv) by reputable overnight courier service to the appropriate address set forth in this section and/or the applicable Order, or (v) via e-mail to the appropriate address set forth in this Agreement and/or the applicable Order. Notices will be considered provided at the earlier of the time of receipt or 5 business days after being sent.
13.3 Language. All communications and notices to be made or given pursuant to this Agreement must be in the English language.
13.4 Changes in Contact Details. The Parties shall notify each other of any change in their contact details with a prior of notice of at least 15 days with respect to the date of the envisaged change, which will only be effective after said notice. Any notices sent to the address, facsimile number or e-mail address which has been changed by the receiving Party but not communicated to the other Party as set forth in this section shall be considered provided pursuant to section Error! Reference source not found..
13.5 Agreement to Governing Law and Jurisdiction. Each Party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
13.6 Waiver of Jury Trial. Each Party hereby waives any right to jury trial (where applicable) in connection with any action or litigation in any way arising out of or related to this Agreement.
14 - MISCELLANEOUS
14.1 Export Laws. End-Customer agrees that the applicable export and import laws govern End-Customer’s use of the Evaluation Product, including related Documentation. End-Customer agrees that neither the Evaluation Product nor any direct product thereof will be exported, directly, or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation.
14.2 Relationship of Parties. The Parties are independent contractors, and not agents, employees or joint ventures of one another, and do not have any authority to bind the other Party by contract or otherwise to any obligation. Neither Party will represent to the contrary, either expressly, implicitly, by appearance or otherwise.
14.3 Assignment. This Agreement is not assignable or transferable by either Party without the prior written consent of the other.
14.4 No Solicitation. During the term of this Agreement and for a period of 6 months thereafter, neither Party shall, either directly or indirectly, solicit the employment of any of the employees of the other Party. This promise shall be construed as an agreement independent, yet ancillary, of any other provision of this Agreement.
14.5 Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect, expect to the extent such invalid provision relates to essential aspects of the Agreement.
14.6 No Waiver of Rights. The failure of either Party to enforce any of the provisions of this Agreement, or the failure to require performance by the other Party of any of the provisions of this Agreement, shall not be construed to be a present or future waiver of such provisions, nor affect the validity of either Party’s right to enforce such provision in future.
14.7 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment to or modification of this Agreement will be binding unless in writing and signed by a duly authorized representative of both Parties.
14.8 Interpretation. Words importing the singular include the plural and vice versa. Words importing a gender include every gender. The words and phrases “other”, “such as”, “including” and “in particular” shall not limit the generality of any preceding words or be construed as being limited to the same class as the preceding words where a wider construction is possible.
14.9 Headings. The caption and the headings to clauses, sections, parts, paragraphs and Orders are inserted for convenience only and shall be ignored in interpreting this Agreement.
14.10 Survival. Clauses and / or sections 3.2., Error! Reference source not found., 5, 7, 10, 11, 13 and 14 of this Agreement shall survive termination, without prejudice to other obligations that, pursuant to the applicable law or to this Agreement, shall also remain in force after termination date.