Last updated October 21, 2022
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\n\u00a0PLEASE READ THIS MASTER SERVICES AGREEMENT CAREFULLY BEFORE USING THE PRODUCTS AND SERVICES (THE \u201cWEBSCALE SERVICES\u201d) OFFERED BY WEBSCALE NETWORKS, INC., A DELAWARE CORPORATION, HAVING ITS PRINCIPAL PLACE OF BUSINESS AT 5201 GREAT AMERICA PARKWAY, SUITE 232, SANTA CLARA CA. 95054 UNITED STATES (THE \u201cCOMPANY\u201d). BY SIGNING A SUBSCRIPTION ORDER FORM THAT REFERENCES THIS AGREEMENT OR PURCHASING THE SERVICES THROUGH OUR ONLINE PORTAL (EACH BEING AN \u201cORDER\u201d), YOU OR THE ENTITY THAT YOU REPRESENT (\u201cCUSTOMER\u201d) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. THIS AGREEMENT CONSISTS OF THE ORDER AND THE FOLLOWING TERMS AND CONDITIONS (COLLECTIVELY THE \u201cAGREEMENT\u201d). THE AGREEMENT EFFECTIVE DATE IS THE DATE YOU AGREED TO THE ORDER. PROVISION OF THE WEBSCALE SERVICES IS CONDITIONED ON, AND CUSTOMER\u2019S ACCESS TO OR USE OF THE WEBSCALE SERVICES SHALL CONSTITUTE, CUSTOMER\u2019S ASSENT TO THE TERMS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. IN THE EVENT OF A CONFLICT BETWEEN THIS AGREEMENT AND THE ORDER, THE ORDER SHALL CONTROL. COMPANY AND CUSTOMER MAY BE REFERRED TO IN THIS AGREEMENT EACH AS A \u201cPARTY\u201d AND COLLECTIVELY AS THE \u201cPARTIES.\u201d\u00a0\u00a0<\/p>\n
WEBSCALE SERVICES.<\/p>\n
Functionality. Company has developed software (the \u201cSoftware\u201d) used to provide the Webscale Services across cloud and data center computing platforms. The Webscale Services purchased by Customer are described in one or more Orders incorporated into this Agreement. Company may from time to time update, change, or revise the Webscale Services or any component thereof, provided the functionality of the Webscale Services is not materially decreased from that described in the related Order.
\nSubscription. Subject to the terms and conditions of this Agreement and Customer\u2019s compliance therewith, including the payment by Customer of all applicable Fees (defined below), Company will provide Customer with a subscription to access and use the Webscale Services during the Term, solely for purposes of Customer\u2019s own internal use. All access to and use of the Webscale Services by Customer is personal, non-exclusive, non-transferable, and non-sub licensable.
\nAccess. Company will provide Customer with an account (an \u201cAccount\u201d) through which Customer may enable its employees and contractors (\u201cUsers\u201d) to access the Webscale Services. Customer may establish user identifications and passwords through which Users may access the Webscale Services through Customer\u2019s Account (each such User identification and password, a \u201cUser ID\u201d). Customer is and will remain solely responsible for all use of the Webscale Services by each User and for compliance by each User with the applicable terms of this Agreement. Customer acknowledges that Customer is and will remain fully responsible for all costs, fees, liabilities, or damages incurred through any access to or use of the Webscale Services through the Account or by any User (whether lawful or unlawful). Any Webscale Services used or transactions facilitated through Customer\u2019s Account or under any User ID will be deemed to have been completed by Customer. In no event will Company be liable for the foregoing obligations or any failure by Customer to fulfill such obligations. Customer will be solely responsible, at Customer\u2019s own expense, for acquiring, installing and maintaining all hardware, software and other equipment as may be necessary for Customer and each User to connect to, access, and use the Webscale Services.
\nRestrictions. Customer acknowledges that the Webscale Services and the databases, Software, hardware, and other technology used by or on behalf of Company to provide the Webscale Services (collectively, the \u201cTechnology\u201d), and their structure, organization, and underlying data, information, and source code constitute valuable trade secrets of Company and its third-party providers. As a condition to the use of and access to the Webscale Services, Customer will not, and will not permit any User or other third party to: (a) access or use the Webscale Services except as expressly permitted by this Agreement; (b) access or use the Technology, in whole or in part, except as expressly provided in this Agreement; (c) use the Webscale Services in any unlawful or illegal manner or in any other manner that could damage, disable, overburden or impair the Webscale Services or the Technology; (d) use automated scripts to collect information from or otherwise interact with the Webscale Services or the Technology; (e) use the Webscale Services to send spam or otherwise duplicative or unsolicited commercial email messages; (f) alter, modify, reproduce, or create derivative works of the Webscale Services or the Technology; (g) distribute, sell, resell, lend, loan, lease, license, sublicense or transfer any of Customer\u2019s rights under this Agreement to access or use the Webscale Services, including by providing outsourcing, service bureau, hosting, application service provider or online services to any third party, or otherwise make the Webscale Services available to any third party except for Users as provided in this Agreement; (h) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or method of operation of or any trade secrets embodied in the Webscale Services or the Technology; (i) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Webscale Services or the Technology; (j) use the Webscale Services or the Technology for purposes of monitoring their availability, performance or functionality, or for any other benchmarking, business intelligence, data mining, or competitive purposes; or (k) interfere in any manner with the operation or hosting of the Webscale Services or the Technology.
\nAcceptable Use Policy. Customer shall use the Webscale Services in accordance with Company\u2019s Acceptable Use Policy found at https:\/\/www.webscale.com\/acceptable-use-policy\/. Company may investigate any reported or suspected violation of the Acceptable Use Policy and take any action that it deems appropriate and reasonable under the circumstance to protect its systems, facilities, customers and\/or third parties.
\nInformation Security. The Company shall adhere to the information security management commitments set forth at https:\/\/www.webscale.com\/information-security\/.<\/p>\n
MAINTENANCE AND SUPPORT SERVICES. Subject to the terms and conditions of this Agreement, including the payment by Customer of all applicable Fees, during the term of this Agreement Company will provide Customer with maintenance and support (the \u201cSupport Services\u201d) in accordance with Company\u2019s then-current support policies. Company will provide the Support Services only to Customer and will have no obligation to provide any Support Services directly to (or respond to any support or other requests from Customer relating to) any third party, provided that Company reserves the right to contact any third party to facilitate the delivery of Support Services or other services relating to the Webscale Services as deemed necessary by Company.
\nPROFESSIONAL SERVICES. Customer may from time to time request that Company perform certain additional professional or consulting services relating to the Webscale Services (such additional services, the \u201cProfessional Services\u201d). The performance of all Professional Services will be as set forth in an Order, as applicable. All Orders between the Parties relating to the Professional Services will be issued under and subject to the terms of this Agreement and incorporated herein. Company will perform all applicable Professional Services at the rates for those services set forth in each applicable Order or, if no rates are set forth in an applicable Order, at Company\u2019s then-current rates for such Professional Services. Customer agrees to pay Company all such fees as set forth in this Agreement or any such Order. Any inventions, conceptions, developments, discoveries, works of authorship, or other deliverables or work product that arise from or relate to the Professional Services (collectively \u201cDeliverables\u201d), and all IPR (as defined below) therein or relating thereto, shall be solely owned by Company. To the extent such Deliverables relate to the Webscale Services, the Deliverables will be deemed included in the Order and provided to Customer under the terms of this Agreement through Customer\u2019s subscription to the Webscale Services. Customer will have no additional licenses or other rights in or to any Deliverables, except as may be expressly set forth in an Order relating to those Deliverables.
\nFEES AND PAYMENT.<\/p>\n
Fees and Payment. Customer agrees to pay Company all fees set forth in any Order issued under this Agreement (\u201cFees\u201d). All Fees for the Webscale Services will be invoiced in accordance with the terms set forth in the applicable Order. All Fees will be non-refundable once paid to Company (including upon any termination or suspension of this Agreement). Until paid in full, all past due amounts will bear an additional charge of the lesser of one-and-one-half percent (1.5%) per month or the maximum amount permitted under applicable law. If Company requires use of collection agencies, attorneys, or courts of law for collection on Customer\u2019s Account, Customer will be responsible for such expenses.
\nTaxes. Fees do not include any local, state, federal or foreign taxes, levies, assessments, duties, or other governmental charges of any kind or nature, including, without limitation, any value-added tax (VAT), stamp or other similar tax, social security (or local equivalent), state or regional tax, or income or other federal tax (\u201cTaxes\u201d). Customer is responsible for paying all Taxes that may be imposed by way of the performance of either Party under this Agreement, excluding only Taxes based on Company\u2019s net income. If Company is found or deemed to have a legal obligation to pay or collect any Taxes for which Customer is responsible under this Agreement, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority.<\/p>\n
TERM AND TERMINATION.<\/p>\n
Term. The term of this Agreement will begin on the Agreement Effective Date and will continue for a period as defined in the Order or until terminated in accordance with the terms and conditions of this Agreement (the \u201cTerm\u201d).
\nTermination. Either Party may terminate this Agreement or any Order immediately upon notice to the other Party if the other Party: (a) materially breaches this Agreement and fails to remedy such breach within thirty (30) days (except for failure to pay Fees which must be remedied within five (5) days) after receiving notice of the breach from the other Party; (b) materially breaches this Agreement in a manner that cannot be remedied; or (c) commences bankruptcy or dissolution proceedings, has a receiver appointed for a substantial part of its assets, or ceases to operate in the ordinary course of business.
\nSuspension. Without limiting Company\u2019s right to terminate this Agreement, Company may suspend Customer\u2019s access to the Webscale Services upon notice to Customer following any breach of this Agreement if deemed reasonably necessary by Company to prevent any damage, injury, or harm to the Webscale Services, Company, any User, or any other Company customer or user.
\nEffect of Termination. Upon termination of this Agreement under Section 5.2: (a) Company may cease providing access to the Webscale Services under this Agreement; (b) all rights and subscriptions granted to Customer under this Agreement will terminate; (c) Customer will immediately cease all access to and use of the Webscale Services; (d) all Fees and other amounts then owed by Customer under this Agreement will become immediately due and payable to Company; (e) Customer will immediately either return to Company or, at Company\u2019s discretion, destroy any Company Data (as defined below), User IDs, and Company Confidential Information (as defined below) then in Customer\u2019s possession or control, provided that Customer may maintain all Customer Data (as defined below); and (f) Company will be under no further obligation to retain any Customer Data held by Company. In addition, upon termination of the Agreement under Section 5.2 by Company, Customer shall reimburse Company for all expenses incurred by Company under all active Orders and pay Company for all Webscale Services or Professional Services provided prior to notice of such termination. The following sections will survive termination or expiration of this Agreement: 1.4 (Restrictions), 4 (Fees and Payment), 5.4 (Effect of Termination), 6.1 (Company\u2019s IPR), 7.1 (Data Protection), 7.3 (Customer Data), 7.4 (Data Use), 9 (Warranty Disclaimer), 10 (Indemnification), 11 (Limitation on Liability), 12 (Confidentiality), 13 (Governing Law), 15 (Notices), 16 (Assignment), and 17 (Miscellaneous).<\/p>\n
INTELLECTUAL PROPERTY.<\/p>\n
Company\u2019s IPR. Company retains all right, title and interest, including, without limitation, all IPR (as defined below), in and to the Webscale Services, Deliverables, Technology, Company Data, and any additions, improvements, updates, and modifications thereto. Customer acknowledges that Customer is not receiving any ownership interest in or to any of the foregoing, and no right or license is granted to Customer to use any of the foregoing apart from Customer\u2019s right to access and use the Webscale Services under this Agreement. The names and logos of Company and the Webscale Services and the names and logos associated with any other services of Company are trademarks of Company (or its third-party providers), and no right or license is granted to Customer to use them. For purposes of this Agreement, \u201cIPR\u201d means any and all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information or intangible property throughout the world, including, without limitation, any and all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, sui generis rights in databases, and contract rights. Customer will not remove or alter any proprietary rights legend on the Webscale Services or any Deliverables, Technology, or Company Data.
\nCustomer License. Customer hereby grants Company a non-exclusive, worldwide, and royalty-free license for the Term to use Customer\u2019s content as necessary for the purposes of rendering and operating the Webscale Services to Customer under this Agreement. Customer expressly (a) grants Company a license to cache materials distributed or made available for distribution via the Webscale Services, including content supplied by third parties, and (b) agree that such caching is not an infringement of any of Customer\u2019s intellectual property rights or any third party’s intellectual property rights.<\/p>\n
DATA.<\/p>\n
Data Processing. To the extent applicable, this Agreement incorporates Company\u2019s Data Processing Addendum (\u201cDPA\u201d), which is available at https:\/\/www.webscalenetworks.com\/dpa\/. The DPA may be updated from time to time, and Company will provide reasonable notice of any such updates. Customer will have and abide by an appropriate privacy policy and will comply with all applicable laws, policies, and regulations relating to the collection of information from its users. Customer shall post a privacy policy and that privacy policy must provide notice of Customer\u2019s use of cookies (including the use of cookies and pixels on behalf of Customer by third-party vendors such as Company), identifiers for mobile devices or similar technology used to collect data. Customer will use commercially reasonable efforts to ensure that its users are provided with clear and comprehensive information about, and consents to, the storing and accessing of cookies or other information on its user\u2019s device where such activity occurs in connection with the Webscale Services and where providing such information and obtaining such consent is required by law.
\nCompany Data. Company may provide Customer with access to certain data, information, and other content through the Webscale Services, Professional Services, Support Services, Technology, and\/or Deliverables (\u201cCompany Data\u201d). Subject to this Agreement and Customer\u2019s compliance therewith, Customer may access the Company Data without modification solely for Customer\u2019s own internal use in connection with Customer\u2019s use of and access to the Webscale Services. Company uses commercially reasonable measures to ensure the accuracy and reliability of all Company Data, but Company will not be responsible for any erroneous data, information, or content provided through the Webscale Services. Except as expressly provided in this Agreement, Customer is granted no rights in or to the Company Data.
\nCustomer Data. Customer will be solely responsible for all data, information, and other content that Customer, any User, or any Customer user may provide to Company or generate through the use of the Webscale Services (\u201cCustomer Data\u201d) and for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. Customer grants to Company all rights and licenses in and to Customer Data necessary for Company to provide the Webscale Services under this Agreement. Customer owns and retains all of Customer\u2019s rights in and to all Customer Data. Customer represents, warrants, and covenants that: (i) none of the Customer Data violates this Agreement, the DPA, the privacy policy (as posted on Company\u2019s website and modified from time to time, the \u201cPrivacy Policy\u201d) or any IPR or other rights of any User or third party; (ii) Customer has all necessary right, title, interest and consent necessary to allow Company to use Customer Data for the purposes of this Agreement; (iii) the Customer Data does not contain viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents, or programs; (iv) the Customer Data is accurate and complete; (v) the Customer Data will not interfere with or disrupt or corrupt the integrity, accuracy, or performance of the Webscale Services; and (vi) the Customer Data is not obscene, threatening, libelous, or otherwise unlawful, illegal, or tortious. Customer will maintain an adequate back-up of all Customer Data and except for the express obligation of Company to maintain back-up copies of any Customer Data, Company will not be responsible or liable for any deletion, correction, destruction, damage, loss or failure to store or back-up any of Customer Data. Additionally, within the PCI DSS scope of the Webscale Services, Company is responsible for the security of cardholder data during transmission and never stores or processes cardholder data.
\nData Use. Company may use and disclose data and information collected through operation of the Webscale Services solely as described in this Agreement and in Company\u2019s then-current DPA and Privacy Policy. Notwithstanding anything in the DPA or Privacy Policy, Company will have the right to collect and analyze non-personally identifiable data or information (de-identified data or information that does not identify Customer or any entity or natural person as the source thereof) resulting from the access to and use of the Webscale Services. To the extent any such data or information is collected or generated by Company, such data and information may be used by Company for any lawful business purpose without a duty of accounting to Customer, provided that the data and information is used only in an aggregated form, without directly identifying Customer, any User or other entity or natural person as the source thereof.<\/p>\n
REPRESENTATIONS AND WARRANTIES.<\/p>\n
General. Each Party represents, warrants, and covenants to the other Party that: (a) it has and will continue to have during the term hereof, all rights, power, and authority necessary to enter into this Agreement and perform all of its obligations thereunder; (b) the performance of its obligations under this Agreement does not and will not violate any law applicable to such Party\u2019s performance, any rights of any third party, or any agreement by which such Party is bound; and (c) it will procure all rights, certificates, licenses, permits or other approvals required for its performance under this Agreement.
\nPerformance. During the term of this Agreement, Company represents and warrants to Customer that Company will use commercially reasonable efforts to maintain and verify that the Webscale Services operate in accordance with the documentation for the Webscale Services provided to Customer by Company (\u201cDocumentation\u201d). If applicable, as indicated in an Order, Company shall provide the Webscale Services in accordance with the service levels set forth in the Service Levels Agreement and Support Services located on Company\u2019s website at https:\/\/www.webscalenetworks.com\/sla\/. Company\u2019s sole obligation and Customer\u2019s sole and exclusive remedy in the event of any failure by Company to comply with the foregoing two sentences will be for Company to: (a) at its option, remedy the failure or re-perform the affected Webscale Services; and (b) pay Customer any applicable Service Level credit (if applicable).<\/p>\n
WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SOFTWARE, WEBSCALE SERVICES, PROFESSIONAL SERVICES, SUPPORT SERVICES AND ALL WEBSCALE NETWORKS DATA PROVIDED THROUGH THE WEBSCALE SERVICES ARE PROVIDED TO CUSTOMER STRICTLY \u201cAS IS\u201d AND \u201cAS AVAILABLE,\u201d AND WEBSCALE NETWORKS AND ITS THIRD-PARTY PROVIDERS EXPRESSLY DISCLAIM, AND CUSTOMER DISCLAIMS ANY RELIANCE ON, ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD THERETO OR TO ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AVAILABILITY OR ERROR-FREE OPERATION. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY WEBSCALE NETWORKS, ITS EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT.
\nINDEMNIFICATION.<\/p>\n
General. Each Party (the \u201cIndemnifying Party\u201d) will defend, indemnify, and hold harmless the other Party (the \u201cIndemnified Party\u201d) and its officers, directors, employees, and agents (its \u201cRelated Parties\u201d) from and against any third-party claim, allegation or action (any \u201cAction\u201d) brought against the Indemnified Party or one of its Related Parties (other than by the Indemnified Party itself or another of its Related Parties) to the extent relating to, resulting from, or arising out of the gross negligence or willful misconduct of the Indemnifying Party in the performance (or failure to perform) any of its obligations under this Agreement. The Indemnifying Party will further pay those losses, liabilities, damages, fees, expenses, and costs (including reasonable attorneys\u2019 fees and court costs) (\u201cLosses\u201d) finally awarded against the Indemnified Party or one of its Related Parties in any such Action or the Losses agreed to in a monetary settlement of such Action, as applicable.
\nBy Company. Company will defend, indemnify, and hold harmless Customer from and against any Action brought against Customer by a third party (other than a Related Party of Customer) that the use by Customer of the Webscale Services infringes any United States patent, or copyright or misappropriates any trade secret in existence under any laws of any state within the United States. Company will pay those Losses finally awarded against Customer in any such Action or the Losses agreed to in a monetary settlement of such Action, as applicable. If Customer is, or Company reasonably believes Customer may be, enjoined from using the Webscale Services due to an Action covered by this Section, Company may procure the right for Customer to continue using the Webscale Services, replace or modify the Webscale Services so that it becomes non-infringing, or terminate this Agreement and provide Customer with a refund of any pre-paid amounts applicable to the Webscale Services, if any. Company will have no obligation under this Section or otherwise with respect to any Action or Losses in the case of: (a) any use of the Webscale Services other than by Customer; (b) any use of the Webscale Services not under and in accordance with this Agreement; (c) any use of any of the Webscale Services in combination with products, equipment, services, processes, software, data or information not supplied by Company; or (d) any modification of or enhancement to the Webscale Services other than by Company. THIS SECTION CONSTITUTES COMPANY\u2019S SOLE AND EXCLUSIVE LIABILITY, AND CUSTOMER\u2019S SOLE AND EXCLUSIVE REMEDY, FOR ANY INFRINGEMENT OR MISAPPROPRIATION OF IPR OR ANY OTHER RIGHTS RELATING TO THE SOFTWARE OR THE WEBSCALE SERVICES.
\nBy Customer. Customer will defend, indemnify, and hold harmless Company and its Related Parties from and against any Action brought against Company or one of its Related Parties (other than by Company or another Company Related Party of Company) to the extent relating to, resulting from, or arising out of any: (a) breach by Customer of Section 1.4, 1.5, 4.2, 7, or 8.1(b); (b) except in the case of a breach by Company of this Agreement, use of the Webscale Services by Customer or any User; (c) access to or use of any Customer Data by the Webscale Services, except in the case of a breach by Company of this Agreement; or (d) any violation of any law, rule or regulation caused by the use of or access to the Webscale Services by Customer or any User, or by Customer\u2019s business, products, or services. Customer will pay the Losses finally awarded against Company in any such Action or the Losses agreed to in a monetary settlement of such Action, as applicable.
\nConditions. All obligations of each Party to defend or indemnify the other Party or any Related Party under this Agreement are conditioned upon the Indemnified Party providing the Indemnifying Party with: (a) prompt notice of any claim for indemnification or defense after receiving notice thereof; (b) sole control over the defense and settlement of such claim, provided that any settlement that will require the Indemnifying Party to assume any liability other than the payment of monies will be subject to the Indemnifying Party\u2019s prior written consent; and (c) reasonable assistance in such defense or settlement (at the Indemnifying Party\u2019s expense).<\/p>\n
LIMITATION ON LIABILITY. EXCEPT AS RELATED TO CONFIDENTIALITY OBLIGATIONS, IN NO EVENT WILL COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN CONNECTION WITH OR OUT OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE USE OF OR ACCESS TO ANY WEBSCALE SERVICES OR TECHNOLOGY (OR ANY COMPANY DATA PROVIDED THROUGH THE WEBSCALE SERVICES), EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OPPORTUNITY, LOSS OF REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE SERVICES. COMPANY\u2019S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, THE TECHNOLOGY, AND ALL SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE FEES PAID TO COMPANY HEREUNDER IN THE TWELVE (12)-MONTH PERIOD PRECEDING ANY SUCH INITIAL OCCURRENCE OF LIABILITY. CUSTOMER AGREES THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND ACKNOWLEDGE THAT COMPANY WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, COMPANY\u2019S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
\nCONFIDENTIALITY.<\/p>\n
Protection. Each Party (the \u201cReceiving Party\u201d) may from time to time receive or otherwise obtain data or information regarding the business, finances, services or technology of the other Party (the \u201cDisclosing Party\u201d), including, without limitation, technical, advertising, marketing, sales, financial, pricing, employee, customer, and planning information (\u201cConfidential Information\u201d). The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement and will disclose the Confidential Information of the Disclosing Party only to the employees or permitted contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party\u2019s duty hereunder. The Receiving Party will protect the Disclosing Party\u2019s Confidential Information in the same manner as the Receiving Party protects its own confidential information of a similar nature and with no less than reasonable care.
\nExceptions. The Receiving Party\u2019s obligations with respect to any Confidential Information of the Disclosing Party will terminate if such information: (a) was already lawfully known to the Receiving Party as of the Effective Date; (b) is disclosed to the Receiving Party after the Effective Date by a third party who had the right to make such disclosure without any confidentiality restrictions; or (c) is, or through no fault of the Receiving Party becomes, generally available to the public. The Receiving Party will also be permitted to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is required by law or by the order of a court of similar judicial, regulatory or administrative body, provided that the Receiving Party notifies the Disclosing Party in advance of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party\u2019s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
\nReturn of Confidential Information. The Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party\u2019s possession or control and permanently erase all electronic copies thereof (a) promptly upon the request of the Disclosing Party or (b) when such Confidential Information is no longer needed in connection with its performance under this Agreement, whichever comes first. At the Disclosing Party\u2019s request, the Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with the foregoing obligations.<\/p>\n
GOVERNING LAW. This Agreement shall be interpreted under California law without regard to choice or conflicts of law rules and the parties agree to submit to the exclusive jurisdiction of the applicable state or federal courts in Santa Clara County, California.
\nFORCE MAJEURE. Neither Party will be held responsible for failure or delay in the performance of any obligation under this Agreement, with the exception of the obligation to pay Fees, if such failure or delay is due to acts of God or governmental authority, war, terrorism, strikes, boycotts, labor disputes, fire or other loss of facilities, accident or any other cause beyond its control (each, a \u201cForce Majeure\u201d). If the performance of any obligation under this Agreement by either Party is prevented, restricted or interfered with by reason of a Force Majeure event, the Party whose performance is so affected, upon giving prompt notice to the other Party, will be excused from such performance to the extent of such Force Majeure event, provided that the Party so affected will take all reasonable steps to avoid or remove such causes of nonperformance and will continue performance hereunder with dispatch whenever such causes are removed.
\nNOTICES. Any notice, demand, consent, approval, request or other communication or document to be provided hereunder to a Party shall be (a) in writing and addressed to the address for such Party as set forth on the first page of this Agreement and (b) deemed to have been provided (i) 48 hours after being sent by certified first-class mail in the United States mails, postage prepaid, return receipt requested; (ii) the second business day after having been deposited for second-day delivery with a national courier service or the next business day after being deposited for overnight delivery with such courier service; or (iii) upon being provided by hand or other actual delivery to such Party. Either Party may designate a substitute address for the address set forth on the first page of this Agreement in accordance with the terms of this Section.
\nASSIGNMENT. Neither this Agreement nor any rights or obligations of Customer hereunder may be assigned, delegated, or transferred by Customer (whether in whole or in part, including by sale, merger, consolidation, or operation of law or otherwise) without the prior written approval of Company. Any assignment in violation of the foregoing will be null and void. Company may assign this Agreement to any party that assumes Company\u2019s obligations hereunder. Company may subcontract its obligations under this Agreement, provided that Company remains responsible for compliance with the applicable terms of this Agreement as to those obligations.
\nMISCELLANEOUS. This Agreement is the complete and exclusive statement of the agreement between the Parties and supersedes any proposal or prior agreement, oral or written, and any other communications between the Parties in relation to the subject matter of this Agreement. Terms used in this Agreement 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 the United States. The words \u201cinclude,\u201d \u201cincludes\u201d and \u201cincluding\u201d means \u201cinclude,\u201d \u201cincludes\u201d or \u201cincluding,\u201d in each case, \u201cwithout limitation.\u201d Except as expressly set forth in this Agreement, this Agreement may be modified or amended only in a writing signed by both parties. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force. The Parties hereto are independent parties, not agents, employees or employers of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other. 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