Customer License Agreement
This Customer License Agreement (“CLA” or this “Agreement”) governs the license and use of Forward Networks’ Software and related services. If you do not accept the terms of this CLA, do not install, use or access the Software, as Forward Networks is unwilling to license the Software and/or provide the related services to you.
ACCESSING, DOWNLOADING, INSTALLING OR USING THE SOFTWARE CONSTITUTES ACCEPTANCE OF THIS CLA. IF YOU DO NOT ACCEPT THIS CLA OR DID NOT PURCHASE OR ACQUIRE A LICENSE TO USE THE SOFTWARE FROM FORWARD NETWORKS OR AN APPROVED SOURCE, YOU HAVE NO LICENSE OR RIGHT TO USE THE SOFTWARE, AND THE RIGHTS GRANTED UNDER THIS CLA DO NOT APPLY.
1. DEFINITIONS. When used herein, capitalized terms have the meanings set forth below, or as otherwise set forth in this CLA.
1.1. “Approved Source” means a Forward Networks authorized channel partner (e.g., reseller, distributor, OEM, or the like), or managed service provider.
1.2. “Customer”, “you”, and/or “your” means the entity or person(s) downloading, accessing, or using the Software for internal business purposes, including third party service providers who have a need to use the Software in connection with the provision of services solely to you or on your behalf.
1.3. “Network Data” means Software-collected Node data to enable Software features and functionality.
1.4. “Node” means a Customer physical device or virtualized instance that is accessed by the Software’s data collector in order to gather configuration and state information, as set forth in the Software documentation. The Software is licensed per Node.
1.5. “Order Form” means a separate document provided by Forward Networks or Approved Source, agreed to by the parties hereto or as between Customer and Approved Source as the case may be, and governed by this CLA as well as any ancillary agreement documents set forth on such Order Form, by which Customer orders Software licenses and related services. Each Order Form is subject to this CLA and such ancillary agreement documents described thereon and incorporates the terms of this CLA and ancillary agreement documents by this reference.
1.6. “Separately Licensed Third Party Software” means third party technology that is licensed under Separate Terms and not under the terms of this CLA.
1.7. “Separate Terms” means separate license terms that are specified in the Software documentation, read me or notice files and that apply to Separately Licensed Third Party Software.
1.8. “Software” means the Forward Networks hosted cloud and Node collector software, Source Code and user documentation, including patches, bug fixes, enhancements, new features and functionality, and derivatives thereof (if any), as made generally available by Forward Networks during the Subscription Term, but specifically, that Forward Networks makes available to Customer pursuant to the applicable Order Form.
1.9. “Software Support Services” means Forward Networks’ standard Software maintenance, support and feature enhancement services made generally available by Forward Networks and included at no additional charge during the Subscription Term. These services are not made available separately for purchase or outside of the Subscription Term.
1.10. “Source Code” means the binary computer code of the Software and any material beyond the literal code itself that facilitates or expedites the review and understanding of the Software.
1.11. “Subscription Term” means the duration of each identifiable Software license subscription, as specified in the applicable Order Form.
1.12. “Virus” means any computer code intentionally designed to (a) disrupt, disable, harm, or otherwise impede in any manner the proper operation of a computer program or computer system or (b) damage or destroy any data files residing on a computer system without the user’s consent.
2. LICENSE GRANT AND RESTRICTIONS
2.1. License Grant. Subject to the provisions of this CLA and payment of all applicable license fees, and upon Forward Networks’ acceptance of the applicable Order Form from (or on behalf of) Customer, Forward Networks grants Customer a personal, limited, non-exclusive, non-sublicensable, non-transferable, non-assignable, revocable license to use the Software in a Forward Networks’ cloud hosted environment only in object code form for the Subscription Term specified in the applicable Order Form, for Customer’s own internal purposes only. Customer may permit its employees, agents and contractors to use the Software for purposes permitted pursuant to this CLA, and Customer will be responsible for their compliance in accordance with the terms of this CLA. The Software must be used only in accordance with this CLA and the documentation made available to Customer by Forward Networks. Customer must use the Software only in the manner for which Customer has purchased or obtained a valid license. Customer may make a reasonable number of copies of the Software for testing, archival and/or back-up purposes, to be used only when the primary copies of the Software are not operational. All legends, trademarks, trade names, copyright marks and other proprietary notices included in the original copies of the Software must be maintained as part of any and all testing, archival, back-up or other copies of the Software made by Customer. All rights not expressly granted to Customer hereunder are reserved by Forward Networks. In order to download, access or use the Software, Customer may be required to obtain, use and register a license key and provide additional information as requested by Forward Networks. Customer acknowledges that the activation keys and internal controls in the Software do not necessarily restrict usage to the permitted use (described herein) and do not necessarily ensure compliance with this CLA.
2.2. Trial Licenses. This Section will apply only when Customer is licensing the Software for an initial evaluation period. In such event, the license is valid only for the evaluation term specified in the applicable Order Form and may only be used for evaluation purposes. Under no circumstances will a trial license be construed to mean that Customer is authorized to provide services associated with the Software directly to any third party for any reason whatsoever. In the event that Customer determines not to enter into a full use Software subscription at the end of the trial period, then Customer’s rights to use the Software will terminate. Customer acknowledges and agrees that Software Support Services as described in Section 4 are not provided by Forward Networks for trial licenses.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS CLA, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SOFTWARE LICENSED FOR EVALUATION UNDER THIS SECTION IS PROVIDED TO CUSTOMER “AS IS” AND FORWARD NETWORKS AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT THERETO, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OR TRADE. FORWARD NETWORKS DOES NOT WARRANT FREEDOM FROM ERRORS, OR THAT ERRORS IN THE SOFTWARE WILL BE CORRECTED. CUSTOMER ACKNOWLEDGES THAT IT HAS NOT ENTERED INTO THIS CLA IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE SPECIFICALLY AND EXPRESSLY SET FORTH HEREIN SOLELY WITH RESPECT TO EVALUATION USE. CUSTOMER ACKNOWLEDGES AND AGREES THAT FORWARD NETWORKS’ SUPPLIERS AND LICENSORS ARE THIRD PARTY BENEFICIARIES OF THIS SECTION.
2.3. License Restrictions. All Software delivered hereunder is licensed, not sold. Customer has no right to take possession of the cloud hosted Software or to receive, use or examine any source code or design documentation relating to the Software, including no right to source code escrow for any reason whatsoever. Except as and to the extent expressly provided in this CLA, and subject to any non-waivable rights that Customer may enjoy under applicable law, Customer may not itself, or through any parent, subsidiary, affiliate, agent, or other third party, nor permit third parties to:
a. Modify, translate, adapt, change, enhance or create derivative works based upon the Software, including using the Software to develop other software or applications;
b. Copy, or otherwise reproduce the Software in whole or in part;
c. Decompile, translate, reverse engineer, disassemble, attempt to discover any Source Code or underlying Software structure, architecture or algorithms, or reduce the Software to human-readable form;
d. Remove, modify or tamper with any proprietary rights notices or legends on or in the Software;
e. Use, license, sell, transfer, or any way distribute or sublicense the Software that is outside the scope of the licenses granted herein;
f. Provide, lease, lend, use, disclose, divulge or make available to third parties, or otherwise use the Software in a timesharing or service bureau environment;
g. Cause the Software or any proprietary portion thereof to become publicly available;
h. Extract or run any component of the Software independently;
i. Utilize the Software or portion thereof to pass Network Data in Customer’s network with a trial, unpaid or unlicensed version of the Software; or
j. Publicly disseminate performance information or analysis about the Software including benchmarking test results.
2.4. Separately Licensed Third Party Software. The Software may contain or require the use of Separately Licensed Third Party Software that may be, but not necessarily is, provided with the Software. Forward Networks may provide notices to Customer in Software documentation, or read me or notice files in connection with such Separately Licensed Third Party Software. Separately Licensed Third Party Software Third party technology will be licensed to Customer under Separate Terms. Forward Networks disclaims all liability and warranties with respect to Separately Licensed Third Party Software.
2.5. License Granted to Forward Networks. Customer acknowledges and agrees that the Software may access third party Node software in order to collect Network Data, and that such access may be in violation of third party terms and/or conditions to which Customer is bound. As between Forward Networks and Customer, such access, and the consequences thereof, is solely Customer’s responsibility, and Forward Networks has neither any obligation nor ability to verify what, if any, third party agreements to which Customer is bound, nor will Forward Networks have any responsibility, whether legal, financial, or otherwise, arising out of or relating to the foregoing.
2.6. Network Data. To provide the basic Software functionality, the Software requires the collection of Network Data. The Software does not collect any personal data, and no Customer network traffic is collected by or routed to the hosted cloud component of the Software. Forward Networks may use Network Data to provide the Software functionality and Software Support Services to Customer and for the general purpose of improving the Software and other Forward Networks offerings. Without limiting the generality of the foregoing, Forward Networks may (a) compile statistical and other information related to the performance, operation and use of the Software, and (b) use data from the Software usage in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes (clauses i and ii are collectively referred to as “Service Analyses”). Forward Networks may make Service Analyses publicly available; however, Service Analyses will not be presented in a form that could serve to identify Customer or any individual. Forward Networks retains all intellectual property rights in Service Analyses.
2.7. Trans-Border Use of Software. Customer acknowledges that the Software is designed with capabilities for Customer and its authorized users to access the Software (under some delivery models) without regard to geographic location and to transfer or otherwise move Customer data between the Software and other locations such as Nodes. Customer is solely responsible for the authorization and management of user accounts across geographic locations, as well as export control and geographic transfer of Customer data.
2.8. License Co-Termination; Segmentation. To the extent that Customer purchases Software license subscription(s), the duration of each Subscription Term previously purchased will be adjusted such that all of the Subscription Terms terminate on the same date using a weighted average model. Without limiting the generality of the foregoing, the purchase of any Software licenses and/or service offerings are all separate offers and separate from any other order for any Software and/or service offerings that Customer may receive from Forward Networks, whether directly or indirectly. Customer’s obligation to pay for any Software and/or service offerings is not contingent on the delivery or performance of any other Software or services.
3. PROFESSIONAL SERVICES.
3.1. Implementation and Training. If indicated in the Order Form(s), Forward Networks will provide to Customer Software-related implementation and/or training services. Unless otherwise specifically noted in the applicable Order Form, training will be held on weekdays. Customer acknowledges that such services are scheduled on a first come, first served basis, subject to Forward Networks’ availability. Should Customer require rescheduling of a confirmed service appointment, Forward Networks will make commercially reasonable efforts to accommodate Customer’s request. If Customer cancels a scheduled and confirmed training session, Customer will be responsible for Forward Networks’ standard cancellation fees and any other charges as specified in the applicable Order Form. All travel and related expenses necessitated by training, implementation, and/or consulting services being rendered by Forward Networks hereunder at Customer designated sites will be reimbursed by Customer to Forward Networks. Such travel and related expenses will include reasonable coach class airfare, transportation to and from Customer site, lodging, meals and miscellaneous (e.g. tips, tolls, etc.) and may include travel time at Forward Networks’ standard travel rate. Unless otherwise specified in the Order Form, all professional services must be consumed within six (6) months from receipt of the Software, or all prepaid professional services fees will be deemed earned by Forward Networks. Upon Customer’s request, Forward Networks will provide further services to train any additional Customer personnel on the features, operation, and use of the Software, at Forward Networks’ standard price list per diem rates in effect at the time such training is requested by Customer. Additional services that are required as a result of Customer’s action, inaction or failure to meet its obligations, including delays or wait time caused by issues related to Customer’s hardware and software, will be billable to Customer and will be invoiced at Forward Networks’ then-current rates.
3.2. Custom Development and Enhancement Requests. This CLA does not include any programming services for new software development or software modifications. Such work, if negotiated and agreed to between Forward Networks and Customer, will be the subject of a separate agreement for development services between the parties. The fees, payment terms and delivery schedules related to such work will be as outlined in such agreement for development services and are independent of Software or services provided under this CLA. Customer acknowledges that Forward Networks is not a contract development organization, but rather, Forward Networks is a software developer that licenses its Software within specified industries. As such, Customer further acknowledges that the Software is a major and valuable asset of Forward Networks’ business and, as such, Forward Networks will have complete control of the design and development of the Software, including updates thereto. Therefore, Forward Networks has the right, and sole discretion, to decline any request for enhancement or modification to the Software. Should Customer require modification of any standard forms incorporated into the Software or design of new forms, any such customization work will be contracted for separately at Forward Networks’ then-current rates.
4. SOFTWARE SUPPORT SERVICES.
4.1. Service Description and Entitlement. Available service descriptions are located at https://www.staging4.forwardnetworks.com/software-support-services/, and Customer may select Customer’s desired support level (if applicable) as established in the Order Form. Notwithstanding the foregoing, if (a) Customer has: ordered the Software through an Approved Source and (b) the Approved Source retains the Software license subscription(s) in order to provide a managed service, then except as otherwise stated in the following sentence, this Section 4 will not apply, as the Software Support Services entitlement will be between Forward Networks and the applicable Approved Source under terms separate from this CLA. Customer may obtain Software support from the applicable Approved Source providing such managed services under terms solely as between Customer and such Approved Source, and Customer is not entitled to any direct support from Forward Networks.
4.2. Limitations. Forward Networks’ obligation to provide Software Support Services is conditioned upon such Customer registration or activation of such services if required, receipt of all applicable due and payable amounts, and Customer’s compliance with the provisions of this CLA and any other service terms and conditions provided to Customer. If Customer reports an issue to Forward Networks that necessitates the provision of Software Support Services (such issue, a “Service Request”), Customer will initially classify the Service Request according to severity levels as set forth in the Software Support Services description; such classification is subject to Forward Networks’ review and adjustment, in Forward Networks’ reasonable discretion. Forward Networks is not obligated to provide assistance regarding any issue if Forward Networks determines that the cause of the Service Request is not related to the Software or the request falls within the support exclusions described in Section 4.3.
4.3. Exclusions. Software Support Services exclude, and Forward Networks disclaims responsibility for, Service Requests arising out of: alterations or modifications to the Software not performed Forward Networks, accident, negligence, improper installation, misapplication, or misuse of the Software or Customer’s failure to use the Software in accordance with the provisions of this CLA and/or the associated Software documentation.
5. LIMITED WARRANTY.
5.1. Software Warranty. For thirty (30) days following the date on which the initial Software is first made available to Customer hereunder (the “Software Warranty Period”), Forward Networks warrants to Customer that the Software as made available to Customer and when used as permitted hereunder, will perform substantially in accordance with the Software documentation. Forward Networks does not warrant that Customer’s use of the Software will be error-free or uninterrupted. Forward Networks will, at its own expense and as its sole obligation and Customer’s exclusive remedy for any breach of this warranty reported to Forward Networks during the Software Warranty Period, use commercially reasonable efforts to correct any reproducible error in the Software reported to Forward Networks by Customer in writing during the Software Warranty Period or, if Forward Networks determines that it is unable to correct the error, Forward Networks will refund to Customer all license fees paid for the nonconforming Software, in which case this CLA and Customer’s right to use the Software will be terminated. Any error correction provided to Customer will not extend the Software Warranty Period. Forward Networks will not be obligated to resolve any nonconformity or defect in the Software caused by any Software misuse or modification of the Software by any party other than Forward Networks, or breach by Customer (or its agents) of the terms of this CLA.
5.2. Virus. Forward Networks will use commercially reasonable efforts in screening the Software and the media on which the Software are furnished to Customer before delivery, to reduce the possibility of the existence of a Virus. If Forward Networks performs such screening, but Customer is able to demonstrate that the Software supplied by Forward Networks are the source of a Virus introduced into Customer’s computing environment, Forward Networks’ sole obligation will be to deliver a new copy or copies of the Software free of the identified Virus, at no charge to Customer. Customer acknowledges that not all Viruses can be detected by such programs and, therefore, Forward Networks does not represent or warrant that such Software or media will be free of Viruses. Customer understands and acknowledges that the Software may contain technological measures designed to limit functionality of the Software prior to activation, to authorize or authenticate the validity of the Software, or to prevent the illegal or unauthorized usage of the Software or usage of the Software that violates the terms and conditions of this CLA. Such measures may include a means for Forward Networks to access the Software to validate its authorized use or enable some or all of functionality of the Software prior to use or the transmission to Forward Networks of information regarding usage of the Software for the sole purpose of verifying compliance with this CLA. Customer hereby consents to the transmission of such information to Forward Networks and agrees not to circumvent or attempt to circumvent such measures.
5.3. WARRANTY DISCLAIMER. EXCEPT AS PROVIDED IN THIS SECTION 5, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SOFTWARE, DOCUMENTATION, AND SOFTWARE SUPPORT SERVICES ARE PROVIDED “AS IS” AND FORWARD NETWORKS AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT THERETO, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OR TRADE. FORWARD NETWORKS DOES NOT WARRANT FREEDOM FROM ERRORS, OR THAT ERRORS IN THE SOLUTION WILL BE CORRECTED. CUSTOMER ACKNOWLEDGES THAT IT HAS NOT ENTERED INTO THIS CLA IN RELIANCE UPON ANY WARRANTY OR REPRESENTATION EXCEPT THOSE SPECIFICALLY AND EXPRESSLY SET FORTH HEREIN. CUSTOMER ACKNOWLEDGES AND AGREES THAT FORWARD NETWORKS’ SUPPLIERS AND LICENSORS ARE THIRD PARTY BENEFICIARIES OF THIS SECTION.
6.1. By Forward Networks. Forward Networks will defend any action against Customer brought by a third party to the extent the action is based on a claim that the Software directly infringes that third party’s United States patent or copyright or misappropriates such third party’s trade secret (a “Claim”). Forward Networks agrees to pay all damages and costs (including reasonable attorney’s fees) finally awarded against Customer by a court of competent jurisdiction that are specifically attributable to the Claim, or those costs and damages agreed to by Forward Networks in a monetary settlement of the Claim. If, in connection with a Claim, the Software is adjudged to infringe and its use is enjoined by a court of competent jurisdiction, or if Forward Networks reasonably believes that the Solution is or may become the subject of a Claim, then Forward Networks may, at its own expense and at its option: (i) modify the Software to render it non-infringing while maintaining substantial functional equivalence; (ii) procure for Customer the right to continue to use the Software as permitted under this CLA; (iii) replace the Software with a non-infringing product of substantially equivalent function; or (iv) accept return of the Software and notwithstanding any other provision of this CLA, terminate the Software license subscription and refund to Customer the unearned portion of the subscription fee paid for the Software, prorated to the end of the then-current Subscription Term. Notwithstanding the foregoing, Forward Networks has no obligation under this Section or otherwise with respect to any Claim based upon: (a) use of the Software in combination with other products, processes, equipment, data or materials not provided by Forward Networks, if such combination is the cause of the claim; (b) use of any version or release of the Software other than the most current version or release made available by Forward Networks, if its use would have avoided the Claim; (c) use, reproduction, or distribution of the Software not in accordance with this CLA or the Software documentation; and (d) any modification of the Software that is not made by Forward Networks.
6.2. Conditions. The obligations under Section 6.1 are conditioned on the Customer: (a) giving Forward Networks prompt written notice of the relevant Claim; (b) reasonably cooperating with Forward Networks, at Forward Networks’ expense, in the defense of the Claim; and (c) giving Forward Networks sole control of the defense and settlement of the Claim, provided that any settlement must include a waiver of all claims against Customer. Subject to and without limiting the foregoing, Customer may participate in the defense at its expense (not subject to reimbursement).
6.3. THE FOREGOING STATES FORWARD NETWORKS’ ENTIRE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY.
6.4. Indemnification by Customer. Customer agrees to indemnify and hold Forward Networks harmless from and against any and all claims, suits, losses, damages, liabilities, costs and expenses (including paying all reasonable attorneys’ fees and costs of litigation) resulting from or relating to: (i) the combination, operation or use of the Software with any hardware, software, data, or other device supplied by a party other than Forward Networks and the combination of such is the cause of the claim, or (ii) any alteration or modification of the Software other than by Forward Networks.
7. PROPRIETARY RIGHTS.
Forward Networks and each of its third party suppliers own and retain for itself all right, title and interest in and to all designs, engineering details, data, materials, discoveries, inventions, patents and other proprietary rights pertaining to or reflected by the Software, including any and all feedback provided by Customer with respect to the foregoing (it being understood that the provision of feedback is at Customer’s option).
8. CONFIDENTIAL INFORMATION.
8.1. Confidentiality. Confidential Information means any information disclosed by one party to the other , either directly or indirectly, in writing, orally or by inspection of tangible objects, proprietary information, technical data, trade secrets (other than the Source Code) or know-how (including research, product plans, products, services, customers, markets, works of original authorship, photographs, negatives, digital images, software, computer programs, know-how, ideas, inventions (whether or not patentable), processes, formula, technology, designs, drawings, engineering, hardware configuration information, marketing or finance documents and other technical, business, financial, customer and product development plans, forecasts, strategies and information), which is designated as “Confidential,” “Proprietary” or some similar designation or which the receiving party knows or has reason to known is regarded as confidential by the disclosing party (“Confidential Information”). Receiving party will at all times keep in confidence all such Confidential Information and will not use such Confidential Information without disclosing party’s written consent except in performance of its duties hereunder. Receiving party may not disclose the Confidential Information to any person except its employees to whom it is necessary to disclose the Confidential Information for permissible internal business purposes and who have agreed to receive it under terms at least as restrictive as those specified in the Software Terms. Receiving party’s obligation to protect Confidential Information is satisfied if it utilizes the same control over the Confidential Information as it employs to avoid disclosure of its own confidential and valuable information (but no less than commercially reasonable control). Receiving party will immediately give notice to disclosing party of any unauthorized use or disclosure of the Confidential Information. Receiving party agrees to assist disclosing party in remedying such unauthorized use or disclosure of the Confidential Information. The foregoing obligations will not apply to the extent receiving party can demonstrate:
a. The disclosed Confidential Information was part of the public domain at the time of disclosure;
b. by written evidence that the disclosed Confidential Information was in the possession of the receiving party at the time of its disclosure by disclosing party;
c. receiving party received the disclosed Confidential information from a third party without similar restrictions on disclosure; or
d. receiving party is required to disclose the Confidential Information to a government agency, or in the event a proper court of competent jurisdiction orders its disclosure; provided, however, that receiving party will use its best efforts to minimize the disclosure of such Confidential information and will consult with and assist disclosing party in obtaining a protective order prior to such disclosure.
8.2. Retention Rights. Forward Networks may use any general learning, skills, or know-how or any information retained in the unaided memory of a person who had access to the Customer’s Confidential Information for any purpose. Forward Networks is free to develop products independently. Forward Networks may use any technical information it derives from providing the Software Support Services relating to Service Request resolution, troubleshooting, functionality enhancements and fixes. In the event of an unauthorized use, distribution or disclosure of any Confidential Information, the parties agree that the harmed party will not have an adequate remedy at law. Therefore, injunctive or other equitable relief may be appropriate to restrain such use, distribution or disclosure, whether threatened or actual. To the extent that Forward Networks provides Customer serial numbers, access codes, entitlement numbers or the license to access Software or Software Support Services, Customer is responsible for the security and use of such information, including that contained in the documentation therefore. If Customer believes any Forward Networks Confidential Information has been lost, stolen, or misused, Customer must immediately notify Forward Networks.
9. LIMITATION OF LIABILITY.
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND. IN ADDITION, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR LOSS OF PROFITS OR REVENUE, LOST BUSINESS, AND LOST OR CORRUPT DATA OR GOODWILL ARISING OUT OF OR RELATED TO THIS CLA HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. THESE LIMITATIONS APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. EACH PARTY’S ENTIRE LIABILITY ARISING OUT OF OR RELATED TO THIS CLA WILL BE LIMITED TO THE AMOUNTS PAID OR PAYABLE TO FORWARD NETWORKS OR APPROVED SOURCE FOR THE SOFTWARE IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
10. TERM AND TERMINATION.
10.1. Term. Unless the Subscription Term start date is expressly identified in the Order Form, the Subscription Term begins on the date Customer first purchases, accesses, downloads, installs, or uses (whichever occurs first) the Software and continues through the end of the Subscription Term purchased and as stated on the Order Form or in accordance with Section 2.8 (“License Co-Termination; Segmentation”).
10.2. Termination for Cause. Either party may terminate this CLA or any Software license subscription if the other party commits a material breach of this CLA in any material respect and fails to cure the breach, if capable of cure, within thirty (30) days after receiving written notice from the other party specifying the nature of the breach. Forward Networks may suspend or terminate the license(s) granted under this CLA or restrict access to the Software if Forward Networks reasonably believes Customer breached any license-related provision of this CLA and such breach is not cured within five (5) days. In the event that Customer terminates this CLA or a Software license subscription for cause, Forward Networks will refund to Customer the unearned pro-rata amount of fees paid for the applicable Software license subscription(s) to the end of the Subscription Term.
10.3. Effect of Termination and Survival. Upon any termination or expiration of this CLA, Customer will return to Forward Networks every copy of the Software and the corresponding software keys or certify their destruction in writing, and Customer will not retain any copies of any Forward Networks Confidential Information or Software. The following Sections will survive termination or expiration of this CLA: 1 (“Definitions), 2.2 (“Trial Licenses”) (regarding the warranty disclaimers), 2.3 License Restrictions; 2.5 (“License Granted to Forward Networks”), 2.6 (“Network Data”), 2.8 (“License Co-Termination; Segmentation), 5.3. (“Warranty Disclaimer”), 6 (“Indemnification”), 7 (“Proprietary Rights”), 8 (“Confidential Information”), 9 (“Limitation of Liability”), and 11 (“Miscellaneous”).
11.1. Law; Disputes. This CLA will be governed by and construed in accordance with California law without giving effect to conflict of laws principles that would require the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply to this CLA. The parties agree that any action or proceeding arising from or relating to this CLA must be brought exclusively in a court of competent jurisdiction, federal or state, located in Santa Clara County, California. Each party irrevocably submits to the personal jurisdiction and venue of, and agrees to services of process issued or authorized by, such courts, and waives any objection thereto. The parties agree that injunctive relief (without bond) is an appropriate remedy for threatened breaches of Section 2 (“License Grant and Restriction”), Section 7 (“Proprietary Rights”), and/or Section 8 (“Confidential Information”), which will constitute immediate, irreparable harm.
11.2. Export. Customer acknowledges that the Software is subject to the provisions of the U.S. Export Administration Regulations and may be subject to export and import regulations in countries outside the United States and agrees to comply with all such applicable laws and regulations, as required. Customer acknowledges and agrees that it will not import, export, re-export, transfer or use, directly or indirectly, the Software in violation of the laws and regulations of any applicable jurisdiction. This restriction expressly includes, but is not limited to, the export regulations of the United States, and the import and export restrictions of any country in which Customer transacts business. Customer also agrees that it will not itself, nor allow any third parties to export, import, transfer, use or re-export the Software, directly or indirectly (i) to any U.S. embargoed country; (ii) to any person or entity on a denial list published by the U.S. Government; or (iii) for any end use that is prohibited by United States or other applicable law, including nuclear, missile, chemical biological weaponry or other weapons of mass destruction. Customer acknowledges that the Software may be classified as “restricted encryption” items under section 740.17(b)(2) of the U.S. Export Administration Regulations and may require export licenses or U.S. re-export approval when being shipped from the U.S. or other countries. Customer agrees to indemnify, defend (with counsel approved in writing in advance by Forward Networks) and hold Forward Networks, its affiliates, subsidiaries, officers, directors, employees and agents, harmless against any claims for cost, damage, expense or liability arising out of or in connection with any breach of Customer’s obligations under this Section.
11.3. Severability. If any term or other provision of this CLA is determined by a non-appealable decision of a court, administrative agency or arbitrator to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this CLA will nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to either party. Upon such determination that any provision is invalid, illegal or incapable of being enforced, that provision will be severed from this CLA and there will be deemed to be substituted a similar term or provision to accomplish the intent of the parties as closely as possible to the original term or provision, as determined by any court or arbitrator having jurisdiction, to the extent permitted by applicable law; provided, however, that if any restriction or limitation set forth in any license granted hereunder is deemed invalid or unenforceable, the entire license will terminate.
11.4. Force Majeure. Neither party will be liable for the performance of its obligations under this CLA if it becomes commercially impracticable to perform due to any cause beyond the reasonable control of that party, including as a result of a Force Majeure. In no event will Forward Networks be required to purchase goods from others to enable it to provide the Software under this CLA. Each party, as applicable, will give the other party notice of its inability to perform and particulars in reasonable detail of the cause of the inability. Each party must use reasonable commercial efforts to remedy the situation and remove, so far as is commercially reasonable and as soon as practicable, the cause of its inability to perform or comply. Each party will give the other party prompt notice of the cessation of the event of Force Majeure. “Force Majeure” means a cause of any kind not reasonably within the control of a party, including acts of God and the public enemy, sabotage, boycotts, disruptions of transportation facilities, inability to obtain supplies or materials, acts of government or its agencies, strikes, labor disputes, power disruptions, lockouts or any other industrial disturbance, or judicial action.
11.5. Independent Contractors. The relationship between the parties established by this CLA is that of independent contractors, and nothing in this CLA will be construed to create a relationship of agency or partnership between the parties or to allow either party to create or assume any obligation on behalf of the other party.
11.6. Subcontractors. Forward Networks may delegate its duties to any one or more Forward Networks affiliate(s) or engage one or more subcontractor(s) to perform certain of its obligations under this CLA, provided, however, that Forward Networks will remain responsible for the acts and omissions of such affiliates and/or subcontractors.
11.7. Nuclear, Aviation or Life Support Application. Forward Networks specifically disclaims liability for use of the Software in connection with the design, construction, maintenance and/or operation of any (i) nuclear facility, (ii) aircraft, aircraft communication or aircraft ground support system, or (iii) safety, health care control, or life support system.
11.8. U.S. Government Restricted Rights. The Software incorporates commercial computer software and commercial computer software documentation developed exclusively at private expense and is in all respects the proprietary property of Forward Networks or its suppliers. If Customer is acquiring the Software on behalf of any part of the United States Government, the following provisions apply. The object code and accompanying documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR 12.212(b), as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the object code and/or the accompanying documentation by the U.S. Government or any of its agencies will be governed solely by the terms of this CLA and will be prohibited except to the extent expressly permitted by the provision of this CLA. Any technical data provided that is not covered by the above provisions is deemed to be “technical data” and “commercial items” pursuant to DFARS Section 252.227.7015(a). Any use, modification, reproduction, release, performance, display or disclosure of such technical data will be governed by the terms of DFAR Section 252.227.7015(b).
11.9. Excluded Data. The Software provided under this CLA is not designed to offer functionality providing security and access management for the processing and/or storage of the following categories of data: (1) data that is classified and or used on the U.S. Munitions list, including software and technical data; (2) articles, services and related technical data designated as defense articles and defense services; (3) ITAR (International Traffic in Arms Regulations) related data; and (4) other personally identifiable information that is subject to heightened security requirements as a result of Customer’s internal policies or practices or by law or regulation (“Excluded Data”). Customer agrees that Customer is solely responsible for reviewing and ensuring that any data it provides to Forward Networks (or to which Forward Networks will have access) does not contain Excluded Data.
11.10. Audit; Retention of Records. Forward Networks may audit and inspect Customer’s usage of the Software and to verify Customer’s compliance with this CLA (including all payment terms, if any) during Customer’s normal business hours, upon 10 days’ notice to the Customer. Customer will promptly remedy any defaults that are discovered.
11.11. Notices. All notices under this CLA will be in writing and will be delivered by personal delivery, internationally recognized overnight carrier, or facsimile transmission, and will be deemed given upon personal delivery, three (3) business days after delivery to the international carrier with proof of receipt, or by email, or fax (if applicable) upon acknowledgment of receipt of electronic transmission. Notices to Forward Networks will be sent to Forward Networks, Inc., firstname.lastname@example.org and to Customer at the email of Customer business owner.
11.12. Assignment. Neither party will, directly or indirectly, in whole or in part, by operation of law or otherwise, assign, transfer, or delegate this CLA without the other party’s prior written consent; any attempted assignment, transfer, or delegation without such consent is null and void. Notwithstanding the foregoing, Forward Networks may, upon notice but without the requirement of obtaining consent, subcontract a portion of the services hereunder, and/or assign this CLA in connection with a change of control, or in an acquisition of all or substantially all of Forward Networks’ assets. This CLA will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
11.13. Remedies Cumulative. Except as otherwise set forth herein, all rights and remedies existing under this CLA are cumulative to, and not exclusive of, any rights or remedies otherwise available.
11.14. Waiver; Amendment. Failure or delay on the part of either party hereto in the exercise of any right hereunder will not impair such right or be construed to be a waiver of, or acquiescence in, any breach of any representation, warranty or agreement herein, nor will any single or partial exercise of any such right preclude other or further exercise thereof or of any other right. No change or amendment will be made to this CLA except by an instrument in writing signed on behalf of each of the parties to such agreement.
11.15. Construction; No Implied Licenses. Headings used in this CLA are for convenience and ease of reference only. As used herein, “including” means “including but not limited to”. Nothing contained herein will be construed to confer any rights by implication, estoppel or otherwise, other than the rights expressly granted herein.
11.16. Translations; Order of Precedence. This CLA is in the English language only, which language will be controlling in all respects, and all versions hereof in any other language will be for accommodation only and will not be binding upon the parties. All communications and notices to be made or given pursuant to this CLA, and any dispute proceeding related to or arising hereunder, will be in the English language. In the event of any discrepancy or inconsistency between different language versions of this CLA (and all associated documents or correspondence concerning this CLA), the English language version will prevail. If any of the provisions of this CLA conflict or are otherwise inconsistent with the terms of a purchase order or other terms provided to Forward Networks, the provisions of this CLA will apply, and the preprinted terms on such purchase order or similar document are hereby rejected.
11.17. Entire Agreement. This CLA constitutes the entire agreement between the parties and supersedes all prior written and oral agreements and understandings between the parties, regarding the subject matter hereof. This CLA may be executed in two or more counterparts, each of which together will be deemed an original, but all of which together will constitute one and the same instrument. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a Portable Document Format (PDF), or by using a web-based e-signature platform such as DocuSign, HelloSign, or Adobe Sign, such signature will create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page or e-signature was an original thereof.