THIS SOFTWARE LICENSE AGREEMENT (" AGREEMENT") IS ENTERED INTO BETWEEN SDNCENTER SP. Z O.O., PORY 78 STREET, 02757 WARSAW, POLAND, REGISTERED IN NATIONAL COURT REGISTER, IN THE DISTRICT COURT FOR THE CAPITAL CITY OF WARSAW XIII COMMERCIAL DIVISION OF THE NATIONAL COURT REGISTER UNDER NUMBER KRS 0000574843 (INTERNATIONAL D-U-N-S NUMBER 366211749) ("SDNCENTER") AND YOU OR, IF YOU REPRESENT AN ENTITY OR OTHER ORGANIZATION, THAT ENTITY OR ORGANIZATION (IN EITHER CASE " LICENSEE"). IF LICENSEE IS ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY OR ORGANIZATION, LICENSEE REPRESENTS THAT LICENSEE HAS THE FULL AUTHORITY TO BIND THAT ENTITY OR ORGANIZATION TO THE TERMS OF THIS AGREEMENT.
SDNCENTER IS WILLING TO LICENSE THE SOFTWARE THAT SDNCENTER MAKES AVAILABLE TO LICENSEE (" SOFTWARE"), INCLUDING, WITHOUT LIMITATION, THE DEVELOPMENT COMPONENTS AND RUNTIME COMPONENTS (EACH AS DEFINED BELOW) AND ALL ACCOMPANYING DOCUMENTATION (ALSO AS DEFINED BELOW) SOLELY UNDER THE TERMS OF THIS AGREEMENT.
PLEASE READ THIS AGREEMENT CAREFULLY. BY SELECTING THE ‘I AGREE’ BUTTON BELOW OR BY INSTALLING OR USING ANY SOFTWARE, LICENSEE ACKNOWLEDGES THAT LICENSEE HAS READ AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
IF LICENSEE DOES NOT AGREE TO BE BOUND BY THIS AGREEMENT, OR DOES NOT MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT, SDNCENTER IS NOT WILLING TO PROVIDE LICENSEE WITH ANY RIGHT OR LICENSE TO THE SOFTWARE AND LICENSEE MUST REFRAIN FROM INSTALLING OR USING THE SOFTWARE IN ANY MANNER. IF LICENSEE INSTALLS OR USES THE SOFTWARE IN ANY MANNER, LICENSEE REPRESENTS THAT LICENSEE MEETS THE QUALIFICATIONS OF THIS AGREEMENT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
This Agreement is effective upon the earlier of the date Licensee first accepts an order for any Software issued by SdNcenter (an "Order") or first installs or uses any Software in any manner (the "Effective Date"). This Agreement consists of the following terms and conditions and all Orders, each of which is incorporated into and made a part of this Agreement. Unless otherwise expressly provided herein, this Agreement exclusively governs access to and use of all Software by Licensee and is the complete and exclusive understanding and agreement between Licensee and SdNcenter regarding the Software. This Agreement supersedes any oral or written proposal, agreement, or other communication between Licensee and SdNcenter regarding the subject matter of this Agreement.
1. DEFINITIONS. The terms listed in this Section 1 will have the definitions given below when used in this Agreement. All other terms will have the definitions given in this Agreement or, if not defined in this Agreement, will have their plain English meaning as commonly interpreted in Poland.
Authorized User" means, (1) in the case where Licensee is an individual, Licensee himself or herself, and (2) in the case where Licensee is an entity or organization, the employees and contractors of the entity or organization, and any subsidiaries, affiliates or customers of that entity or organization authorized on an applicable Order, provided that such employees or contractors are legally bound to observe the terms of this Agreement or have entered into an End User License Agreement.
"Deployment Installations" means the permitted number of unique Installations of the Runtime Components specified in an applicable Order.
"Documentation" means all documentation for the Software provided to Licensee by SdNcenter.
"End User License Agreement" means a written end user software license agreement with Licensee pertaining to the Software having terms at least as protective of SdNcenter and the interests of SdNcenter in the Software as the terms of this Agreement.
"Installation" means an installation or other instance of the Software on computing equipment or in a computing environment owned or controlled by Licensee or an Authorized User, including, without limitation, physical servers, virtualized servers (virtual machines), or other computing equipment or environments.
"Licensee Works" means software components or applications created, compiled, or tested by Licensee using the Runtime Components in accordance with the terms of this Agreement, and that add primary and substantial functionality to the Software (and are not merely a set or subset of any of the Software).
"Runtime Components" means the components of the Software specified in the Documentation as "Main class of Javonet solution" which provide access to bridging functionality in conjunction with the Licensee Works.
"Software" means all computer software made available to Licensee by or on behalf of SdNcenter, including, without limitation, the Runtime Components.
2. ORDER ACCEPTANCE. All Orders for the Software must be issued by SdNcenter. Once issued, an Order will expire unless accepted by Licensee within the longer of thirty (30) days or the time period stated on the Order (if any). An Order may not be accepted by Licensee once the Order has expired. Acceptance of an Order by Licensee will occur upon receipt by SdNcenter of any of the following (or by such other means as may be agreed to by both parties with respect to a given Order): (1) a copy of the Order signed by Licensee; (2) a purchase order from Licensee for the Order; or (3) payment of the Fees under the Order. Licensee may only accept Orders issued by SdNcenter in the name of Licensee and not any third party.
3. TERM. The term of this Agreement for any Software shall begin on the Effective Date and continue for an initial period of 30 days, unless otherwise extended through the express authorization of SdNcenter, such authorization in the sole discretion of SdNcenter (the "Trial Term"). If Licensee accepts the Order applicable to the Software (as set forth in Section 2) prior to the completion of the Trial Term, then the term of this Agreement shall be extended as to that Software for the duration of the commercial term specified in the applicable Order (the "Commercial Term"). If Licensee does not accept the Order applicable to the Software (as set forth in Section 2) prior to the completion of the Trial Term, then this Agreement will expire upon completion of the Trial Term.
4. TRIAL TERM AND ACADEMIC/NONCOMMERCIAL LICENSE. Subject to the terms of this Agreement, SdNcenter grants to Licensee a personal, nonexclusive, nontransferable, noncommercial, limited license during the Trial Term to install and use the number of Deployment Installations of the Software solely for purposes of: (1) using the Runtime Components as necessary to evaluate the Software and test the Licensee Works; and (2) using the Runtime Components to create and compile Licensee Works.. All use of the Software during the Trial Term shall be solely by Authorized Users and ONLY FOR NON-COMMERCIAL, NON-PRODUCTION, INTERNAL, TRIAL AND EVALUATION PURPOSES AND NOT FOR ANY COMMERCIAL, GOVERNMENTAL, OR INSTITUTIONAL PURPOSE OF ANY KIND. If SdNcenter granted to Licensee academic/noncommercial license it can be used following the rules of TRIAL TERM without time limits within the project for which the license was granted. Academic/noncommercial license can be used only for non-commercial and academic usage by institution and workers of the institution for which the academic license was granted. For academic/noncommercial licenses number of Deployment Installations is being defined individually for particular Licensee, any additional usage permissions might be granted with writted permission from SdNcenter.
5. COMMERCIAL TERM LICENSES. Subject to the terms of this Agreement, SdNcenter grants to Licensee the following limited licenses to the Software during any applicable Commercial Term:
5.1 Development License. A personal, nonexclusive, nontransferable (subject to Section 19.10), limited license solely to install the number of Deployment Installations subject to the Order applicable to the Software and permit the use of those Runtime Components by Authorized Users for the sole purpose of: (a) using provided developers API to build custom logic that uses bridging functionality including extending .Net type functionality to build custom proxy classes; (b) using those Proxy Classes and Runtime Components to create and compile Licensee Works; and (c) using those Proxy Classes and Runtime Components and custom logic as necessary to test, use, and operate the Licensee Works created using the Runtime Components.
5.2 Limited Deployment License. A personal, nonexclusive, nontransferable (subject to Section 19.10), limited license solely to distribute the Runtime Components together with the Licensee Works created by Licensee to Authorized Users for the sole purpose of installation and use of the number of Deployment Installations specified in the applicable Order by such Authorized Users. No further use or distribution of the Runtime Components is permitted by Authorized Users or any other third party and Licensee will not permit any Authorized Users or other third parties to otherwise use or further distribute the Runtime Components. PLEASE REFER TO THE DOCUMENTATION FOR INFORMATION ABOUT WHICH COMPONENTS ARE PART OF THE RUNTIME COMPONENTS. LICENSEE MAY NOT DISTRIBUTE ANY OTHER PORTION OF THE SOFTWARE AND ANY SUCH DISTRIBUTION IS A BREACH OF THIS AGREEMENT.
5.3 Back-up Copy; Limited Home Use. Licensee may make 1 copy the Software provided under each applicable Order solely to replace the original copy provided by SdNcenter if the original copy is damaged or destroyed. If Licensee is an individual, Licensee may also make an Installation of the Software on one of Licensee’s home computers, provided that the Installation of the Software may not be used on Licensee’s home computer at the same time as any other Development Installation of the Software is being used.
5.4 No Additional Licenses. The licenses granted in this Section 5 are the sole rights and licenses granted to Licensee and Licensee is provided no other rights or licenses to the Software during the Commercial Term except as expressly stated in this Section 5. In particular, Licensee is not permitted to reproduce or distribute the Software as part of a VAR, OEM, distributor, reseller, or similar arrangement. IF LICENSEE REQUIRES A LICENSE TO DISTRIBUTE THE SOFTWARE OR ANY LICENSEE WORK UNDER SUCH AN ARRANGEMENT, OR REQUIRES ANY ADDITIONAL RIGHTS TO THE SOFTWARE, LICENSEE MUST OBTAIN EXPRESS WRITTEN AUTHORIZATION FROM SDNCENTER.
6. ADDITIONAL RESTRICTIONS. The Software and its structure, organization, and source code constitute valuable trade secrets of SdNcenter and its licensors. Except as may be expressly set forth in the licenses granted in Sections 4 and 5, Licensee shall not, and shall not permit any Authorized User or third party to: (1) install, use, reproduce, copy, display, or distribute the Software; (2) modify, adapt, alter, translate, or create derivative works from the Software; (3) merge the Software with other software; (4) sublicense, distribute, sell, use for service bureau use, lease, rent, loan, or otherwise transfer the Software to any third party; (5) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software or Runtime Components; (6) circumvent or attempt to circumvent any electronic protection measures with respect to the Software; or (7) disclose or publish performance benchmark results for the Software. Licensee will reproduce the copyright and other proprietary notices that appear on the Software on any copies made in accordance with this Agreement and will not remove, alter, or obscure any such notices from the Software.
7. NO USE FOR COMPETITIVE PURPOSES. Licensee may not include the Software, or any portion thereof (including without limitation the Runtime Components), in any software development tool, library, component, or other product that is generally competitive with or a substitute for the Software or any other SdNcenter product offerings; nor may Licensee use the Software to create a product or operate a service that is generally competitive with the Software or any other SdNcenter product offerings.
8. SOFTWARE ACTIVATION AND OPERATION. The Software may contain functionality to disable access to or use of the Software following the end of the Trial Term or any Commercial Term applicable to the Software or upon any attempt to create a new Installation of the Software following initial Installation of the Software. The Licensee Works that Licensee creates using the Software may require the Runtime Components to operate. Access to or use of the Licensee Works may be disabled upon disablement of Licensee’s access to the Software. Licensee agrees to purchase all appropriate licenses to the Software to support Licensee’s use and access to all Licensee Works and to take such actions as are set forth in the Documentation or otherwise directed by SdNcenter to activate those licenses. Licensee will also take such precautions necessary to avoid any loss of data that may occur due to any disablement of any portion of the Software. SDNCENTER SHALL NOT BE LIABLE FOR ANY FAILURE BY LICENSEE TO TAKE ANY OF THE FOREGOING ACTIONS OR FOR ANY INABILITY TO USE OR ACCESS ANY SOFTWARE OR LICENSEE WORKS DUE TO ANY FAILURE TO ACCOMPLISH THE FOREGOING.
9.1 Software and Documentation. The Software and Documentation, including, without limitation, any fixes, features, enhancements, modifications, derivatives, versions, or releases of or to the Software ("Releases"), and all worldwide intellectual property and proprietary rights therein and related thereto, are and will remain the sole and exclusive property of SdNcenter and its licensors. For purposes of this Agreement, the "Software" will include, without limitation, any Releases made available by or on behalf of SdNcenter, unless the Release is expressly provided to Licensee under a separate agreement. The Software is licensed, not sold, to Licensee and except as expressly set forth in Sections 4 and 5, Licensee is provided no rights in or to the Software or any intellectual property or proprietary rights therein or related thereto. SdNcenter and its licensors reserve all rights in and to the Software and Documentation not expressly granted under this Agreement. "Javonet"and the Javonet logo are trademarks of SdNcenter and may not be used by Licensee without the prior express written authorization of SdNcenter.
9.2 Licensee Media and Licensee Works. Licensee will own the media, if any, onto which the Software is downloaded or installed, but SdNcenter will continue to retain ownership of all copies of the Software on such media. Licensee will retain all ownership of those portions of the Licensee Works that Licensee creates that do not contain and are not comprised of the Software or any portion or component thereof. However, Licensee shall not, nor shall Licensee permit any Authorized User or third party to, reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of any Runtime Components.
10. THIRD PARTY SOFTWARE.
10.1 Included Third Party Software. The Software, including the Runtime Components, may include certain third party software distributed by SdNcenter. Use of such third-party software may be conditioned upon agreement by Licensee to a separate license agreement accompanying such third party software. The terms and conditions of any such agreement are in addition to and not in lieu of the terms and conditions of this Agreement, though SdNcenter warrants that any such separate license agreements shall not be subject to any additional payment by Licensee not set forth in an applicable Order. Any support, maintenance, or update of such third party software shall be the sole responsibility of the third party provider of that software and SdNcenter expressly disclaims any responsibility therefor.
10.2 Third Party Software. To the extent that Licensee employs any third party software not distributed by SdNcenter in the creation of Licensee Works, Licensee represents and warrants that it has obtained all rights necessary to use such third party software in the manner actually used by Licensee (including, without limitation, all rights necessary to create custom classes based on third party class libraries).
11. FEES AND PAYMENT.
11.1 Fees. If Licensee elects to extend this Agreement beyond the Trial Term for any Software, Licensee will pay SdNcenter all fees specified in the Order applicable to that Software or otherwise specified by SdNcenter with respect to that Software ("Fee"). Upon receipt of all applicable Fees, Licensee will receive the rights and licenses granted under Section 5 above during the applicable Commercial Term.
11.2 Payment. All payments of all Fees shall identify the applicable Order to which the Fees apply and shall otherwise be made in the form and to the address specified on the applicable Order or otherwise specified by SdNcenter. All payments must be made in U.S. dollars. Except as may be set forth herein, all Fees are non-refundable once received by SdNcenter. Amounts not paid when due shall be subject to a late charge of 1.5% per month (18% per year) or any applicable legal maximum, whichever is less. Fees exclude all applicable sales, use, excise, value added, or other taxes, fees, duties, or similar charges, and Licensee will be responsible for payment of all such taxes, fees, duties, or charges (other than taxes based on SdNcenter’s income). SdNcenter reserves the right to change the Fees at any time prior to payment thereof by Licensee.
12. LIMITED WARRANTY AND DISCLAIMER.
12.1 Limited Warranty. SdNcenter warrants that the Software will perform substantially in accordance with the specifications for the Software set forth in the Documentation for a period of 90 days from the date Licensee initially downloads or otherwise receives a copy of the Software (the "Warranty Period"). As Licensee’s sole and exclusive remedy and SdNcenter’s entire liability arising out of this limited warranty, SdNcenter will, at its sole discretion, use commercially reasonable efforts to correct any reproducible failure of the Software to comply with this limited warranty or replace the Software. SdNcenter will have no responsibility for any failure of the Software to comply with this limited warranty not reported to SdNcenter within the Warranty Period. This limited warranty shall be effective only for so long as Licensee: (a) has properly installed all Software; (b) uses the software only as set forth herein and in the applicable Documentation; (c) has not introduced other software creating an adverse impact on the Software; (d) has paid all Fees due hereunder; and (e) are not otherwise in breach of any provision of this Agreement. In addition, this limited warranty will not apply to the extent that any failure of the Software results from accident, abuse, misapplication, misuse, abnormal use, virus, or third party software or hardware.
12.2 Disclaimer. EXCEPT FOR THE LIMITED WARRANTY CONTAINED IN SECTION 12.1, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE IS PROVIDED TO LICENSEE "AS IS" AND "AS AVAILABLE." SDNCENTER AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES OR CONDITIONS REGARDING THE SOFTWARE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, TITLE AND NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SDNCENTER OR ITS EMPLOYEES OR AGENTS SHALL INCREASE THE SCOPE OF THE ABOVE WARRANTIES OR CREATE ANY NEW WARRANTIES. In states or jurisdictions that do not allow limitations on implied warranties or conditions, the above limitations will apply only as permitted in those states or jurisdictions.
12.3 Restricted Uses. THE SOFTWARE MAY NOT BE USED IN CONNECTION WITH ANY APPLICATION REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS THE OPERATION OF NUCLEAR POWER FACILITIES, AIR TRAFFIC CONTROL OR NAVIGATION SYSTEMS, WEAPONS CONTROL SYSTEMS, LIFE SUPPORT SYSTEMS, OR ANY OTHER SYSTEM IN WHICH FAILURE COULD LEAD TO INJURY, DEATH, ENVIRONMENTAL DAMAGE, OR MASS DESTRUCTION. LICENSEE AGREES THAT SDNCENTER WILL HAVE NO LIABILITY OF ANY NATURE, AND LICENSEE IS SOLELY RESPONSIBLE, FOR ANY LIABILITY, EXPENSE, LOSS, INJURY OR DAMAGE INCURRED AS A RESULT OF SUCH USE OF THE SOFTWARE.
13. SUPPORT, MAINTENANCE, AND TRAINING. Unless Licensee has entered into an Order stating that SdNcenter will provide support, maintenance, or training services for the Software, this Agreement does not obligate SdNcenter to provide any support, maintenance, or training for the Software. If Licensee requires maintenance, support, training, or other additional services relating to the Software, Licensee may contact SdNcenter and enter into a separate Order with SdNcenter providing for maintenance, support, training or such other services.
14. RELATIONSHIP; AUTHORIZED USERS. The parties are independent contractors and neither party is an agent, representative, or partner of the other party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture, or partnership between the parties or to impose any liability attributable to such relationship on either party. There are no third party beneficiaries to this Agreement. SdNcenter provides no warranty whatsoever to any third party. Licensee shall be solely responsible to its Authorized Users (or anyone else who rightfully uses or acquires any Licensee Works) for support, service, upgrades, or technical or other assistance (including with respect to any Runtime Components included therein), and such persons will have no right to contact SdNcenter for any services or assistance.
15. AUDIT. No more frequently than once per 12-month period during the term of this Agreement, and upon reasonable notice and during normal business hours, SdNcenter or its outside auditors will have the right to enter Licensee’s premises and access Licensee’s records and computer systems to the extent necessary to verify that Licensee has paid to SdNcenter the correct amounts owed under this Agreement and determine whether the Software is being used in accordance with the terms of this Agreement. We will design such audits reasonably to minimize disruption to Licensee’s business. Licensee will provide reasonable assistance to SdNcenter in connection with any such audit. Licensee agrees to pay the cost of the audit if any underpayments during the period covered by the audit amount to more than 5% of the fees actually owed for that period. In addition to any such audit, upon the request of SdNcenter, Licensee will promptly provide SdNcenter with a copy of each form of End User License Agreement entered into between Licensee and each Authorized User.
16. TERMINATION AND EFFECT OF TERMINATION.
16.1 Termination. Either party may terminate this Agreement if the other party breaches any material provision of this Agreement and does not cure such breach (provided that such breach is capable of cure) within 30 days after being provided with written notice thereof. In addition to the foregoing, SdNcenter may terminate this Agreement immediately upon written notice to Licensee if: (a) Licensee, in any manner, breaches any part of Section 4, 5, 6, or 9 of this Agreement; or (b) any audit conducted under Section 15 above shows that (i) Licensee underpaid SdNcenter by 10% or more during the period covered by the audit or (ii) underpaid SdNcenter by 5% or more on more than one occasion. Licensee may terminate this Agreement at any time for any reason upon 5 days written notice to SdNcenter of its intent to terminate the Agreement.
16.2 Effects of Termination. Upon any termination or expiration of this Agreement: (a) any amounts owed to SdNcenter under this Agreement before such termination or expiration will be immediately due and payable, unless the Agreement is terminated arising from an uncured breach by SdNcenter under Section 16.1; (b) all rights and licenses granted to Licensee in this Agreement will immediately cease to exist; and (c) Licensee must promptly discontinue all use of the Software, erase all copies of the Software from Licensee’s computers, and return or destroy all copies of the Software on tangible media in Licensee’s possession or control. At the request of SdNcenter, Licensee (or an officer of Licensee, if Licensee is an entity or organization) will certify in writing to SdNcenter that Licensee has fully complied with all requirements of this Section 16.2. Sections 9, 11, 12.2, 12.3, 16, 17.2, 18, and 19 will survive termination or expiration of this Agreement for any reason.
17.1 By SdNcenter.
(a) SdNcenter shall indemnify, defend, and hold harmless Licensee and its officers, directors, employees, representatives and agents (collectively, "Licensee Indemnitees") from and against any third party claim or action brought against any Licensee Indemnitee to the extent such claim or action shows that the Software (when used by Licensee in accordance with this Agreement) infringes or misappropriates any third party copyright, trademark or trade secret or that SdNcenter knowingly infringed any third party U.S. or Polish patent in the development of the Software. SdNcenter shall pay all settlements entered into and damages awarded against any Licensee Indemnitee (including reasonable attorneys’ fees) to the extent based on such a claim or action. The foregoing obligations are conditioned on Licensee (i) notifying SdNcenter promptly in writing of such action, (ii) giving SdNcenter sole control of the defense thereof and any related settlement negotiations, and (iii) cooperating and, at SdNcenter’s request and expense, assisting in such defense.
(b) If the Software becomes, or in the reasonable opinion of SdNcenter may become, the subject of any claim of infringement, SdNcenter may, at its option: (i) procure for Licensee the right to use the Software in accordance with the terms of this Agreement free of any liability; (ii) replace or modify the Software to make it non-infringing, provided that such replacement or modification remains functionally equivalent; or (iii) if neither (i) nor (ii) is commercially practicable, terminate this Agreement on at least 30 calendar days’ written notice to Licensee and refund Licensee the value of the infringing Software upon such termination, computed according to a 36 month straight-line amortization schedule beginning on the Effective Date. SdNcenter shall not be liable for any costs or expenses incurred by Licensee in connection with any claim of infringement without its prior written authorization, provided that such exemption shall not apply if SdNcenter fails to fulfill its obligations pursuant to the above in a timely manner.
(c) SdNcenter shall have no obligation under this Section 17.1 as to any claim or action caused by: (i) any use, reproduction, or distribution of the Software not in accordance with this Agreement; (ii) the combination, operation or use of the Software with other software, hardware, equipment or data not furnished by SdNcenter (whether furnished by Licensee or any third party), where the Software otherwise would not itself be infringing; (iii) use of other than a current unaltered version or release of the Software, provided that such version or release had been made available to Licensee; or (iv) any modification of the Software by any person other than SdNcenter or its authorized agents or contractors.
THIS SECTION 17.1 STATES SDNCENTER’S ENTIRE LIABILITY AND LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT OR MISAPPROPRIATION CLAIMS OR ACTIONS.
17.2 By Licensee. Licensee shall indemnify, defend, and hold harmless SdNcenter and its officers, directors, employees, representatives and agents (collectively, "SdNcenter Indemnitees") from and against any claim or action brought against, or any damage, loss, or liability suffered by, any SdNcenter Indemnitee, and Licensee shall pay all settlements entered into and damages awarded against any SdNcenter Indemnitee (including reasonable attorneys’ fees), arising from or relating to: (i) any Custom Class built using extending .NET type functionality built into Runtime Components, including without limitation any action claiming that a Generated Proxy Class infringes or misappropriates any copyright, trade secret, or U.S. or Polish patent; (ii) any breach by Licensee or an Authorized User of Sections 4, 5, 6, or 9, 11.2 or 19.2; or (iii) use, procurement, reproduction or distribution of Licensee Works or the Runtime Components by Licensee, Authorized Users, or other third parties. Licensee’s obligations under this Section 17.2 are conditioned on SdNcenter notifying Licensee promptly in writing of such action, SdNcenter giving Licensee sole control of the defense thereof and any related settlement negotiations, and SdNcenter cooperating and, at Licensee’s request and expense, assisting in such defense.
18. LIMITATION OF LIABILITY. IN NO EVENT WILL SDNCENTER OR ITS LICENSORS BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THIS AGREEMENT OR THE SOFTWARE OR THE USE OR INABILITY TO USE THE SOFTWARE OR ANY DATA SUPPLIED WITH THE SOFTWARE (INCLUDING, WITHOUT LIMITATION, ANY LOST REVENUE OR PROFITS, LOST DATA, OR INTERRUPTION OF BUSINESS), EVEN IF SDNCENTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE. THE TOTAL CUMULATIVE LIABILITY OF SDNCENTER RELATING TO THIS AGREEMENT OR THE SOFTWARE OR THE USE OR INABILITY TO USE THE SOFTWARE OR ANY DATA SUPPLIED WITH THE SOFTWARE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL NOT EXCEED THE ACTUAL AMOUNTS RECEIVED BY SDNCENTER FROM LICENSEE (IF ANY) FOR THE SOFTWARE UNDER THIS AGREEMENT DURING THE 3 MONTH PERIOD PROCEEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. LICENSEE ACKNOWLEDGES THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT SDNCENTER WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. THE LIMITATIONS IN THIS SECTION 18 WILL APPLY REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE.
19. ADDITIONAL PROVISIONS.
19.1 U. S. Government End Users. The Software is a "commercial item" as that term is defined at FAR 2.101 (Oct 1995), consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212 (Sep 1995) and is provided to the U.S. Government only as a commercial end item. Consistent with FAR. 12.212 and DFARS 227.7202 (Jun 1995), all U.S. Government End Users acquire the Software with only those rights set forth herein.
19.2 Compliance with Laws. Licensee shall comply with all applicable laws concerning its use of the Software. In particular, Licensee acknowledges that the Software is subject to U.S. or Polish export control laws and may be subject to export or import regulations in other countries and agrees to comply with all such laws and regulations and acknowledges that it has the responsibility to obtain such licenses to export, re-export, or import as may be required. Licensee may not directly or indirectly transfer the Software, including its Documentation, to any country if such transfer would be prohibited by applicable law, including the U.S. or Polish Export Administration Act and the regulations issued thereunder. Licensee agrees to the foregoing and Licensee is representing and warranting that Licensee is not located in, under the control of, or a national or resident of any such country.
19.3 Changes to the Software. SdNcenter reserves the right at any time not to release or to discontinue release of any Software and to alter features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of any future releases of the Software.
19.4 Governing Law; Venue and Jurisdiction. This Agreement will be governed by the laws of the Warsaw, Poland, without regard to or application of conflicts of law rules or principles. The parties expressly exclude (as may be applicable) the application of the UN Convention on the International Sale of Goods. The parties further agree that the Hague Convention, including the provisions of the Hague Convention on the Taking of Evidence, shall not apply to any proceeding to enforce the Agreement or any right or dispute originating under the Agreement.
19.5 Modification. Except as expressly set forth in this Agreement, this Agreement may be amended or modified only by a subsequent written amendment signed by the authorized representatives of both parties. Except for any terms or conditions included in an Order accepted by SdNcenter, the or terms or conditions on any purchase order or similar document provided by Licensee will have no force or effect and will not serve to modify the terms of this Agreement.
19.6 Severability. If any provision of this Agreement is held to be unenforceable, that provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will remain in full force. Without limiting the generality of the foregoing, Licensee agrees that Section 18 will remain in effect notwithstanding the unenforceability of any provision in Section 12.2.
19.7 Waiver. All waivers under this Agreement must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
19.8 Notice. All notices, consents, and approvals under this Agreement must be delivered in writing by electronic mail, courier, electronic facsimile, or certified or registered mail (postage prepaid and return receipt requested) to License at the address for Licensee set forth on any Order placed by Licensee and to SdNcenter at the address for SdNcenter set forth on the then-current SdNcenter web site. All notices will be effective upon receipt or 3 business days after being deposited in the mail, whichever occurs sooner. Either party may change its address by giving notice of the new address to the other party.
19.9 Court Costs. If any proceeding or lawsuit is brought by SdNcenter or Licensee in connection with this Agreement, the prevailing party in such proceeding or lawsuit shall be entitled to receive its costs, expert witness fees and reasonable attorney’s fees, including costs and fees on appeal. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
19.10 Assignment. Neither this Agreement nor any rights or obligations of Licensee hereunder may be assigned by Licensee in whole or in part (by operation of law or otherwise) without the prior written approval of SdNcenter, provided, however, that if Licensee is an entity or organization and enters into a merger or consolidation of Licensee, or if any entity purchases or otherwise acquires all, or substantially all, of the assets of that segment of Licensee’s business relating to the subject matter of this Agreement, Licensee shall be able to assign this Agreement as a whole to the surviving corporation or purchasing or acquiring entity following notice to SdNcenter, provided that such surviving or acquiring entity first agrees in writing to be bound by the terms and conditions of this Agreement. SdNcenter may assign this Agreement, and any rights or obligations of Licensee hereunder, without the consent of Licensee. Any assignment in derogation of the foregoing shall be null and void. This Agreement shall inure only to the benefit of SdNcenter, Licensee, and their valid successors and assigns.
19.11 Remedies. Except as expressly provided in this Agreement, the parties’ rights and remedies under this Agreement are cumulative. Licensee acknowledges that the Software contains valuable trade secrets and proprietary information of SdNcenter, that any actual or threatened breach of Sections 4, 5, 6, 7 and 9 will constitute immediate, irreparable harm to SdNcenter for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.