END USER LICENSE AGREEMENT
(last updated March 1, 2018)
THIS END USER LICENSE AGREEMENT ("AGREEMENT") IS A BINDING AGREEMENT BETWEEN IPSWITCH INC. ("IPSWITCH", " US", "WE") AND YOU, OR, IF YOU REPRESENT A LEGAL ENTITY, THE LEGAL ENTITY YOU REPRESENT (COLLECTIVELY, " YOU"). PLEASE READ THIS AGREEMENT CAREFULLY, AS IT SETS FORTH THE TERMS AND CONDITIONS WHICH GOVERN YOUR USE OF THE IPSWITCH SOFTWARE ("SOFTWARE"). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT LEGAL ENTITY TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU ARE NOT PERMITTED TO DOWNLOAD, INSTALL OR USE THE SOFTWARE. IF YOU HAVE ANY QUESTIONS ABOUT THIS AGREEMENT, PLEASE CONTACT IPSWITCH AT LEGAL@IPSWITCH.COM.
1.1 "Documentation" means any user manuals or any other information or documentation relating to the Software that Ipswitch provides to you.
1.2 "End User" means you, your employees, or any contractor or other third party that you authorize to access the Software on your behalf.
1.3 "Fee-Based Software" means the following Ipswitch Software titles, including any applicable re-naming or re-designation thereof: MOVEit Automation; MOVEit Transfer; MOVEit EZ; WS_FTP Server; Web Transfer Module for WS_FTP Server; Ad Hoc Transfer Module for WS_FTP Server; WS_FTP Pro; WhatsUp Gold; WhatsUp Gold Plugins; WhatsUp Gold Standalones; and Log Management.
1.4 "Free Software" means any Ipswitch Software that is not Fee-Based Software.
1.5 "Hosting Provider" means a third party hosting service provider approved in advance by Ipswitch in writing that hosts the Software on your behalf.
1.6 "Server" means one physical server that is not running virtualization software, or one virtual server instance.
2.1 General License Terms
(a) License Grant. Subject to the terms and conditions of this Agreement, Ipswitch hereby grants you a non-exclusive, worldwide, royalty-free, non-transferable license, without the right to sublicense and solely for your internal business purposes to (i) install and use the Software, in its object code form only, on computing resources owned and/or operated by you or your Hosting Provider; and (ii) use the Documentation solely as reasonably necessary to access and use the Software and/or allow your Hosting Provider to host the Software on your behalf. Unless otherwise stated on a particular order placed by you with Ipswitch or an Ipswitch distributor or reseller (" Order"), your license to the Software will be perpetual. You may copy reasonable quantities of any Documentation for your internal use or use by your Hosting Provider, and may make one copy of each Software program solely for your archival, back-up, disaster recovery, or emergency restart purposes, or to replace copies made on defective media, if applicable. You will reproduce and include our proprietary rights and copyright notices on any copies of the Software you make pursuant to this Section 2.1(a). The license includes the right to distribute and use any Ipswitch programs associated with the Software, such as tools or utilities, that are listed in the Documentation. For the avoidance of doubt, and except as expressly permitted hereunder, the Software is licensed on a per-Server basis. This means you may only install and use the Software on the number of Servers, including both production, non-production and failover, disaster recovery or high availability Servers, equal to the number of licenses you purchase via the applicable Order.
(b) Optional Features and Functionality . You may only use an optional feature or functionality associated with the Software if you have selected the feature or functionality in your Order and paid any additional fees for the feature or functionality.
(c) Non-Production Licenses, High Availability and/or Disaster Recovery Purpose License . Non-production licenses may be used solely for testing, training, development or other non-production and non-failover, disaster recovery or high availability purposes. If you obtain a license for failover, disaster recovery or high availability purposes (" Redundant Software"): (i) you may not run such Redundant Software on a primary production Server, unless (a) the primary production Server related to the primary production version of the Software fails, (b) the Software or Server associated with the primary production license is being upgraded or replaced or (c) other temporary reasons disrupt all or a material part of your business operations and (ii) you will promptly get the primary production Server hosting the primary production license operating correctly in order to support your daily activities.
(d) Restrictions . Except as expressly permitted hereunder, you will not: (i) decompile, disassemble or reverse engineer the Software; (ii) modify, publish, transmit, license, sublicense, assign, transfer, sell, grant a security interest in, distribute, reproduce, create derivative or collective works from the Software; (iii) disclose, divulge, communicate, or allow access to the Software to any person except your authorized agents, employees, or other parties expressly authorized hereunder ; (iv) allow any Software to be used on an external commercial rental, time-sharing, or subscription basis or service bureau arrangement; or (v) isolate, extract, or otherwise utilize any components embedded in the Software for any purposes other than those supported by the core functions of the Software; (vi) install or configure, administer, customize, or directly access any third party components embedded in the Software independently of the APIs and functions of the Software; (vii) independently upgrade or change any third party components embedded in the Software in any way except through officially released Ipswitch patches, updates or versions; (viii) remove or modify any proprietary markings or any notice of Ipswitch's or its licensors' proprietary rights; or (ix) publish a review of the Software, information regarding any bugs or defects in the Software, or the results of any benchmark tests run on the Software, in each case, without the prior written consent of Ipswitch.
(e) Third Party Service Providers . You may permit your Hosting Provider and any other agents, contractors, or other service providers (collectively, " Service Providers") to access and use the Software on your behalf, solely as necessary to provide services to you, and provided that you will remain responsible and liable for such Service Providers' use of the Software and compliance with the terms of this EULA.
(f) Reservation of Rights . The Software is licensed, not sold. You acknowledge that the Software (including any and all modifications, enhancements, or customizations thereof) consists of proprietary products of Ipswitch or its licensors, and the proprietary rights that protect such property may include, but are not limited to, U.S. and international copyrights, trademarks, patents and trade secret laws of general applicability. All right, title and interest in and to the Software are and will remain with Ipswitch or its licensors, as applicable. This Agreement does not convey to you any interest in or title to the Software, but only a limited right of use revocable in accordance with its terms.
(g) Fee Based Software . Fee Based Software is licensed subject to the payment of fees in accordance with Section 3.2.
2.2 Additional Terms for Certain Fee Based Software . The following additional terms and conditions apply with respect to Web Transfer Module for WS_FTP Server, Ad Hoc Transfer Module for WS_FTP Server, WS_FTP Pro, WhatsUp Gold and MOVEit EZ.
(a) License Terms . You may use the Software on the number of computing devices identified in the Order. If you use the Software on a virtual machine or in an environment where multiple users share computer resources, each instance of Software in use at any time is considered one computing device. For Software in which more than one feature set (e.g., "standard", "premium") is available, you may solely use one specific feature set. If you desire a different feature set, you must purchase an upgrade. Feature sets are defined in the Documentation and identified at the time of purchase. For Software in which more than one level (e.g. "100 users", "300 devices") is available, you may solely use the specific level identified in the Order. If you desire a different level, you must purchase an upgrade.
(b) Network Environments . For Software in which more than one network environment (e.g. "internally owned and operated", "externally owned and operated") is available, you may solely use the Software in an internally or externally owned and operated network. If you desire to monitor an internal or external network environment that you do not own, you must purchase a separate license.
(c) Dynamic Content . For Software which includes dynamic content (e.g. anti-virus and anti-spam definitions), said content is sold on a subscription basis and remains current as long as you maintain an active subscription with Ipswitch.
(d) Software Development Kits . For Software designated as a Software Development Kit (SDK), you may create, reproduce and distribute solutions, plug-ins or other derivative works solely to End Users who have a valid and current license for the associated Software. For SDK Software designated as "Internal Use", you must further restrict distribution solely to End Users in your organization.
2.3 Free Software . Notwithstanding Section 2.1, you may make unlimited copies of Software that is Free Software and may distribute such Free Software to any party as long as: (a) such distribution is performed without charge, (b) you include a copy of this EULA with such distribution, and (c) you reproduce and include our proprietary rights and copyright notices on all such distributions.
2.4 Beta Testing, Release Candidate or Evaluation Purposes . With respect to beta versions or release candidates of any Software, or Software provided to you for evaluation purposes only, the following terms and conditions apply, but Sections 2.1(a), 2.5, 5.1 and 7 of this Agreement do not.
(a) License Grant . Notwithstanding Section 2.1(a), we hereby grant you a non-exclusive, worldwide, royalty-free, non-transferable, license, without the right to sublicense, to use the Software, in its object code form only, and any associated Documentation, solely for your internal beta testing, internal release candidate testing or internal evaluation purposes. Your license will be effective during the time specified by Ipswitch, or until terminated by Ipswitch in its sole discretion. If the license is for beta testing purposes, you may install the Software only on a non-production Server.
(b) Feedback and Improvements . As consideration for the royalty free license granted herein, you agree (i) to advise us in writing of any problems or bugs in connection with the operation of the Software, and (ii) if the license is for release candidate or evaluation purposes, either obtain a commercial license for the Software, or advise us, in reasonable detail, of the reasons you have decided not to obtain a commercial license. Any improvements, revisions, or derivatives relating to the Software ("Improvements"), including without limitation any suggested by you or any of your employees, agents or affiliates, or any based on your use and license of the Software, will be the sole and exclusive property of Ipswitch. You hereby assign to Ipswitch any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all such Improvements. At our request, you will execute any document, registration or filing required to give effect to the foregoing assignment.
(c) Confidentiality . The features and functions of Software licensed for beta testing, release candidate or evaluation purposes are Confidential Information.
2.5 Ipswitch Schema . If we provide you with the Ipswitch database schema (" Schema"), you agree that your use of the Schema will be subject to the same license and restrictions with respect to the Software under this Agreement, including without limitation Sections2.1(d), 2.1(f), 3.3, 8, 10.3 and 10.4. We may revise, modify or cease to provide the Schema or any part thereof at any time. You understand and agree that any change to the Schema or the database may adversely affect the Software and/or the operation or performance thereof, for which we will have no responsibility. Your use of the Schema will be at your own risk.
3. Registration and Orders
3.1 Orders . Any Order you submit creates no contractual or other obligation on our behalf. Any such obligation will only be created by our acceptance of each Order, which will be solely within our discretion. We reserve the right to reject any Order. You will be solely responsible for the accuracy and truthfulness of the information you provide in any Order, and we will be entitled to rely on any and all such information. We will, and you expressly authorize us to, use the information you provide in any Order to: (a) process Orders including, without limitation, processing payments and communicating with you about the status of your Order; and (b) communicate with you about other products or services we offer or other topics we think you might find of interest (unless you choose to unsubscribe from such communications). Each Order submitted by you and accepted by us will be deemed to be part of, and will be governed by all of the terms and conditions of, this Agreement. In the case of a conflict between an Order and this Agreement, the terms of the Order will govern.
3.2 Payment . Ipswitch will invoice you for the prices set forth in the applicable Order upon your download of the Software or our shipment of the Software to you. You will pay invoices within thirty (30) days of the invoice date. Ipswitch may withhold shipments and cease providing Support until past-due payments are made. Late payments are subject to a charge of the lesser of 1.5% per month or the maximum allowed by law. Prices do not include, and you are responsible for, all applicable taxes of any kind due in respect of the transactions contemplated by this Agreement, except taxes on Ipswitch's net income.
3.3 Credentials . You will be required to create a user name and password (" Credentials") that will be required to order Software or Support (as defined in Section 4). You may only access Software or Support using your Credentials, and may not access Software or Support using Credentials of any other person. You may not make your Credentials available to others, nor allow use of Software or Support by others through your Credentials. You agree to accept sole responsibility and liability for maintaining the confidentiality of your Credentials, for restricting access to your Credentials and for all use, whether authorized or unauthorized, of Software or Support under your Credentials.
3.4 Audits . Ipswitch and its licensors will have the right to gain access to, examine and audit, during normal business hours upon reasonable prior written notice to you, all of your locations, Servers, computers, records, accounts and other information for purposes of determining your compliance with this Agreement. You agree to provide reasonable assistance and access to information in the course of any such audit. Any such audit will be at our expense provided that, if an audit reveals that you have exceeded the scope and number of licenses or have otherwise breached this Agreement, in addition to acquiring additional licenses or otherwise curing such breach, you will reimburse us for the reasonable cost of the audit. We will also have the right to share the results of any such audit with our licensors.
If and for so long as you maintain an active support subscription, we will provide to you support and assistance in accordance with the level of support you purchase ("Support"). More information regarding our support policies can be found at https://www.ipswitch.com/support/about-support . Annual or multi-year Support subscriptions are paid in advance and are non-refundable. Unless notice of intent not to renew is given by either party at least thirty (30) days before the end of the then-current Support term, the Support term will automatically be extended for successive one-year terms upon the same terms and conditions in effect at the end of the then-current term, unless otherwise amended upon mutual agreement.
5.1 Fee Based Software . We warrant that for the warranty period specified in the Order, the Fee-Based Software will substantially conform to its specifications as set forth in the applicable documentation. In the event of a breach of the foregoing warranty, and provided you notify us in writing within thirty (30) days of such breach, we will, at our option and at no additional cost to you, and as your sole and exclusive remedy and our sole and exclusive liability or obligation with respect to such breach, (i) modify the applicable Fee Based Software to conform to the warranty, (ii) replace the non-conforming portion thereof, or, if neither (i) or (ii) are commercially practicable as determined in our sole discretion, accept the return of such Fee-Based Software and refund the license fees you paid therefor, reduced by two and seventy-seven one-hundredths percent (2.77%) per month from delivery. The remedy set forth in this Section 5.1 will not apply to the extent any failure of Fee-Based Software to conform to the warranty arises out of or is caused by: (a) a modification to the Fee-Based Software not performed or provided by us; (b) your failure to promptly install and utilize an update to the Fee-Based Software; (c) your failure to use Fee-Based Software in accordance with its documentation; or (d) the combination of Fee-Based Software with any items not provided by us.
5.2 Disclaimer . EXCEPT AS EXPRESSLY SET FORTH IN SECTION 5.1, THE SOFTWARE, SCHEMA AND ANY OTHER PRODUCTS OR SERVICES RELATED THERETO, ARE PROVIDED "AS IS" AND "AS AVAILABLE". TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IPSWITCH AND ITS LICENSORS DISCLAIM ANY AND ALL WARRANTIES, WRITTEN OR ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, IPSWITCH AND ITS LICENSORS DO NOT WARRANT THAT (1) THE SOFTWARE WILL MEET YOUR REQUIREMENTS; (2) THE SOFTWARE WILL BE FREE OF BUGS, ERRORS, VIRUSES OR OTHER DEFECTS; (3) ANY RESULTS, OUTPUT OR DATA PROVIDED THROUGH OR GENERATED BY THE SOFTWARE WILL BE ACCURATE, UP-TO-DATE, COMPLETE OR RELIABLE; (4) THE SOFTWARE WILL BE COMPATIBLE WITH THIRD PARTY SOFTWARE; AND (5) ANY ERRORS IN THE SOFTWARE CAN OR WILL BE CORRECTED. YOU ASSUME FULL RESPONSIBILITY FOR SELECTION OF THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS AND FOR YOUR USE AND OPERATION OF THE SOFTWARE.
6. Limitation of Liability
6.1 Fee Based Software . This Section 6.1 applies with respect to Fee-Based Software: EXCEPT FOR YOUR BREACH OF SECTIONS 2 OR 3, OUR INDEMNIFICATION OBLIGATIONS UNDER SECTION 7 OR EITHER PARTY'S BREACH OF SECTION 9, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IPSWITCH, ITS LICENSORS AND YOU WILL NOT BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE, DATA OR DATA USE, OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR YOUR BREACH OF SECTIONS 2 OR 3, OUR INDEMNIFICATION OBLIGATIONS UNDER SECTION 7 OR EITHER PARTY'S BREACH OF SECTION 9, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY'S TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT (EXCLUDING CLAIMS FOR FEES PAYABLE BY YOU HEREUNDER) WILL NOT EXCEED THE LICENSE FEES PAID OR PAYABLE TO IPSWITCH UNDER THIS AGREEMENT.
6.2 Free Software. The Section 6.2 applies with respect to Free Software: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IPSWITCH AND ITS LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SOFTWARE, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY AND EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. Intellectual Property Indemnity
7.1 Indemnity . We will defend you and hold you harmless against any claim or action brought by a third party against you that alleges that MOVEit Automation or MOVEit Transfer, as licensed to you under this Agreement, infringes a United States patent, copyright, trade secret, or other proprietary right of a third party (a "Claim"), and we will pay resulting costs, damages, losses finally awarded by court of competent jurisdiction or agreed to by us in a written settlement agreement, and will pay reasonable attorneys' fees incurred, provided that you: (a) notify us in writing no later than thirty (30) days after the Claim is asserted; (b) allow us sole control of the defense and all related settlement negotiations; and (c) provide us with the information, authority, and all assistance reasonably necessary for us to provide the aforementioned defense. You will have the right to be represented in any such Claim by your own counsel, at your own expense. Our obligations under this Section 7.1 will not apply if and to the extent that the Claim results from: (i) a modification of the MOVEit Automation and MOVEit Transfer Software not performed or provided by us; (ii) your failure to promptly install and utilize an update to the Software (or if do not receive an update because you are no longer paying for support); or (iii) the combination of the MOVEit Automation and MOVEit Transfer Software with any items not provided by us.
7.2 Other Remedies . In addition to our obligations under Section 7.1, if as a result of any such Claim, you are enjoined from using MOVEit Automation or MOVEit Transfer, we will, at our sole option and expense: (a) procure for you the right to continue to use the MOVEit Automation and MOVEit Transfer Software, as applicable; (b) replace or modify the MOVEit Automation and MOVEit Transfer Software with functionally equivalent and non-infringing software; or (c) if neither (a) or (b) are commercially practicable as determined in our sole discretion, accept the return of the applicable Software and refund you the MOVEit Automation and MOVEit Transfer license fees, reduced by two and seventy-seven one-hundredths percent (2.77%) per month from delivery, and any prepaid amounts for Support for such Software.
7.3 Disclaimer . THIS SECTION 7 SETS FORTH YOUR SOLE AND EXCLUSIVE REMEDY AND OUR SOLE LIABILITY AND OBLIGATION WITH RESPECT TO ANY CLAIM THAT THE Software infringes a patent, copyright, trade secret, or other proprietary right of a Third Party.
8. Access to Data; Non-Disclosure ; Transfers of data
8.1 System Data . You acknowledge and agree that Ipswitch and its subsidiaries will collect and use the following information about the use of the Software: install started; install finished (with error code if error); install type (evaluation, upgrade, new perpetual); hashed serial number for a generic ID; and additional technical information about your computer, system and application software, and peripherals that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any), and to verify compliance with the terms of this Agreement (any such data collected by Ipswitch under this Section 8.1, " System Data"). System Data will not include any personally identifiable information and will be used only on an anonymous, aggregated basis for Ipswitch's internal business purposes. Ipswitch will own any and all such System Data, and you hereby assign to Ipswitch all right, title and interest in and to the System Data.
9. Confidential Information
9.1 Definition . As used in this Agreement, "Confidential Information" means any and all technical and non-technical data or information, in oral, written, graphic or electronic form, that is either indicated to be the proprietary or confidential information of the disclosing party, or which, by its nature, the receiving party would reasonably deem to be confidential or proprietary, including any information that relates to the disclosing party's research, development or business activities, ideas, know-how, inventions, processes, testing methods, specifications, designs, schematics, techniques, technical documentation, marketing or business plans, and financial information. Without limiting the foregoing, the Software, its features and functions, the Schema and the Documentation all constitute the Confidential Information of Ipswitch.
9.2 Nondisclosure . Each party will maintain in confidence all Confidential Information disclosed to it by the other party (the "Disclosing Party "). Each receiving party under this Agreement (a " Receiving Party") agrees not to use any Confidential Information it receives from a Disclosing Party except as expressly authorized by this Agreement, and further agrees not to disclose or grant use of such Confidential Information to any third party without the prior written consent of the Disclosing Party on a case-by-case basis. In addition, each Receiving Party will use at least the same standard of care as it uses to protect its own confidential information of similar nature to protect the confidentiality of the Confidential Information of the Disclosing Party, and in no event less than reasonable care. Each Receiving Party agrees to promptly notify the Disclosing Party upon discovery of any unauthorized use or disclosure of the Confidential Information. The restrictions on disclosure will not apply to Confidential Information which is required to be disclosed by a court, government agency or regulatory requirement, provided that recipient will first notify the Disclosing Party of such disclosure requirement or order and use reasonable efforts to obtain confidential treatment or a protective order.
9.3 Exceptions. The obligations of confidentiality contained in Section 9.1 will not apply to the extent that it can be established by the Receiving Party beyond a reasonable doubt that such Confidential Information: (a) was already known to the Receiving Party, other than under an obligation of confidentiality, at the time of disclosure by the Disclosing Party; (b) was generally available to the public or otherwise part of the public domain at the time of its disclosure to the Receiving Party; (c) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the Receiving Party in breach of this Agreement; (d) was disclosed to the Receiving Party, other than under an obligation of confidentiality, by a third party who had no obligation to the other party not to disclose such information to others; or (e) was developed independently by the Receiving Party without any use of Confidential Information.
10. Term and Termination
10.1 Term . This Agreement will commence upon your download or installation of the Software and will continue in effect for the license term specified in your Order, and any renewals of such term (or perpetually, if so stated in the Order), or until earlier termination in accordance with this Section. Unless notice of intent not to renew is given by either party at least thirty (30) days before the end of the then-current term, this Agreement will automatically be extended for successive one-year terms upon the same terms and conditions in effect at the end of the then-current term, unless otherwise amended upon mutual agreement.
10.2 Termination by You . You may terminate this Agreement at any time by uninstalling, ceasing all use of and returning the Software, Documentation, and all copies thereof to us or by certifying their destruction to Ipswitch in writing.
10.3 Termination by Ipswitch . We may terminate this Agreement immediately on written notice if: (a) you fail to pay any license or other fees or any part thereof; (b) you breach any material term or condition of this Agreement and do not remedy such breach within thirty (30) days after receiving written notice thereof; (c) you use, copy, distribute or disclose the Software or Documentation in violation of this Agreement or otherwise breach your confidentiality obligations under Section 9, or (d) bankruptcy or insolvency proceedings are instituted by or against you, or a receiver is appointed, or if the Software in your possession is the object of attachment, sequestration or other comparable action, and any such proceeding or action is not vacated or terminated within sixty (60) days after commencement or filing.
10.4 Effect of Termination . Upon any termination of this Agreement, you will (a) immediately cease all use of the Software, (b) return the Software, Documentation, and all copies thereof to us or certify their destruction to Ipswitch in writing, and (c) notify all of your End Users to do the same. You will receive no refund of any fees or other amount on termination unless this Agreement is terminated under Section 5.1 or 7.2(c) above. Exercise of the right of termination afforded to either party in this Agreement will not prejudice the legal rights or remedies either party may have against the other in respect of any breach of the terms of this Agreement.
10.5 Survival . The following provisions will survive any expiration or termination of this Agreement: 1, 2.1(f), 3.4, 5.2, 6, 7.3, 9, 10.4, 10.5, and 11.
11.1 Assignment . You may not assign, novate or subcontract any of your rights or obligations under this Agreement in whole or in part without our prior written consent. Ipswitch may freely assign this Agreement. Subject to the foregoing, this Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and assigns.
11.2 Entire Agreement . This Agreement (together with any applicable Orders accepted by Ipswitch hereunder) sets forth the complete understanding of the you and Ipswitch with respect to the subject matter hereof and supersedes all prior understandings and communications relating thereto. No term or condition of your purchase order or other document provided to Ipswitch which is different from, inconsistent with, or in addition to the terms and conditions set forth herein will be binding upon Ipswitch.
11.3 Compliance with Laws. You will comply with all applicable laws and regulations relating to your use of the Software, including without limitation, those relating to export and import, privacy and personal data protection, and will indemnify and hold Ipswitch, its affiliates, and its and their officers, directors, employees, contractors, and agents harmless from any losses which it may incur in the event of any failure by you to so comply. Without limiting the foregoing, you agree that you will not directly or indirectly, export, re-export or transship the Software in violation of any applicable export control laws or regulations promulgated and administered by the governments of the countries claiming jurisdiction over the parties or transactions, including the U.S. Export Administrations Regulations (collectively, " Export Laws"). In addition, you represent and warrant that you are not a citizen of, or located within, an embargoed or otherwise restricted nation, nor are you listed on the U.S. Treasury Department's list of Specially Designated Nationals or similar lists of denied parties.
11.4 Governing Law; Venue . This Agreement will be governed by and construed under the laws of the Commonwealth of Massachusetts, without giving effect to principles of conflicts of law. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act are specifically excluded from application to this Agreement. You hereby consent to the exclusive jurisdiction of the state and federal courts in (a) in the case of any action initiated by you, Boston, Massachusetts, USA and (b) in the case of any action initiated by us, the city in which the address on your order form is located, if such city is within the USA, and otherwise in Boston, Massachusetts, USA, in order to settle any claim, action or controversy arising out of or related to this Agreement.
11.5 Headings . The section headings of this Agreement are for convenience of reference only and will not be considered in construing this Agreement.
11.6 Force Majeure . Neither party will be responsible for any failure to perform its obligations under this Agreement (other than obligations to pay money) caused by an event beyond its reasonable control, including but not limited to, wars, riots, labor strikes, natural disasters, the infrastructure of the Internet, or any law, regulation, ordinance or other act or order of any court, government or governmental agency.
11.7 Modification; Waiver . This Agreement may not be modified or amended except pursuant to a written instrument signed by both parties. The waiver by either party of a breach of any provision hereof will not be construed as a waiver of any succeeding breach of the same or any other provision, nor will any delay or omission on the part of such party to avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any right, power or privilege.
11.8 Notices . Any notice required or permitted to be given hereunder will be given by: (a) Registered or Certified Mail, Return Receipt Requested, postage prepaid; (b) by e-mail or facsimile; or (c) by nationally recognized courier service to the other party at the addresses set forth in the Order or to such other address as a party may designate in writing. Mail and courier notices will be effective upon receipt; email and facsimile notices will be effective upon confirmation of receipt by the recipient.
11.9 Notice to U.S. Government End Users. The Software and Documentation are "Commercial Items", as that term is defined at 48 C.F.R. 2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. 12.212 or 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users and U.S. Government contractors (a) only as Commercial Items, and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
11.10 Publicity . Ipswitch may include your name and logo on its customer lists and reference the fact that you are a customer of Ipswitch, subject to Ipswitch's confidentiality obligations under Section 9. However, neither party may issue a press release regarding this Agreement without the other party's prior written approval (which will not be unreasonably withheld or delayed).
11.11 Relationship of Parties . The parties expressly agree they are acting as independent contractors and under no circumstances will any of the employees of one party be deemed the employees of the other for any purpose. This Agreement will not be construed as authority for either party to act for the other party in any agency or other capacity, or to make commitments of any kind for the account of or on behalf of the other except as expressly authorized herein.
11.12 Severability . In the event that any provision contained herein will for any reason be held invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, to such extent such provision will be deemed null and void and severed from this Agreement, and the remainder hereof will remain in full force and effect.
11.13 Third Party Beneficiaries . Except for Oracle America, Inc., which solely with respect to MOVEit Automation, MOVEit Transfer or MOVEit EZ, is an intended third party beneficiary of this Agreement, this Agreement is intended for the sole and exclusive benefit of the parties and is not intended to benefit any third party. Only the parties to this Agreement and, as applicable, Oracle America, Inc. may enforce it.