PACKETSLED INC. LICENSE AGREEMENT
By clicking the “I accept” button below, or by installing or using the Software or accepting a Quotation and issuing a Purchase Order, you have indicated that you understand this Agreement and accept all of its terms.
NOW THEREFORE, in consideration of the mutual covenants and conditions contained herein, Licensor agrees to furnish to Customer and Customer agrees to accept, in accordance with this Agreement, the use of the Product(s) (as defined below), pursuant to the terms and conditions of this Agreement and the schedule(s) (“Product Schedule(s)”) attached hereto.
1. Definitionsa. “Affiliate” of a Party means any corporation that the Party directly or indirectly controls, that controls that Party, or that is under common control with that Party. In this context, a party “controls” a corporation if it controls more than 50% of the voting rights for the board of directors attached to outstanding stock in the corporation.
b. “Agreement” means this PacketSled, Inc. License Agreement.
c. “Confidential Information” is defined as any and all information and materials furnished by either Party in connection with the Products to be provided under this Agreement, including, without limitation, each Product, all information transmitted in writing, orally, visually, tangibly, intangibly, or on magnetic media, including, organizational information, system architecture, software, graphics, programs, designs,ideas, concepts, flow charts, diagrams, computer programs, methods research, and any other personal or intellectual property relating to either Party, its respective parent, subsidiaries, or affiliates. The following shall not be considered “Confidential Information”: (i) any information in the public domain at the time of its communication thereof to either Party by the other Party; (ii) any information which enters the public domain, through no fault of the receiving Party, subsequent to the time of its communication to the receiving Party; (iii) any information which is obtained in good faith by either Party from a third party, provided such third party is not bound by a confidentiality agreement with Licensor or Customer, as applicable.
d. “Date Of Delivery” means the date of the first instance that a Product is delivered to Customer.
e. “Hotfix” means a subsequent release of an existing Product that is generally deemed to be a bug-fix release and will generally not contain major, new functionality. Hotfix releases will be designated by a change in the digit of the release number to the right of the decimal. i.e. X.1 to X.2.
f. “License Fee” is defined as the fee indicated on the Product Schedule in exchange for the Licenses granted herein.
g. “Maintenance Start Date” means the date upon which installation of the Product(s) is complete and Customer begins utilizing the Product(s) for productive use but regardless no later than thirty days (30) following delivery.
h. “Maintenance” means Product maintenance, Upgrade and Hotfix services as set forth in Section 13 of this Agreement.
i. “Product” means an item of Software.
j. “Server License” means a right to use a Licensor Product on a server machine.
k. “Software” means any of the Licensor computer software programs for which Customer has acquired the right to use under this Agreement in machine-readable object code form only and associated documentation and any Upgrades and Hotfixs or other modification thereto supplied to Customer.
l. “Upgrade” means a subsequent release of an existing Product, which will contain new functionality and enhancements in addition to bug fixes. Upgrade releases will be designated by a change in the digit of the release number to the left of the decimal. i.e. 1.X to 2.Y.
m. “User” is defined as a specific individual (e.g. identified by an individual login id, access point or user name) whose data is actively ingested into the archive or who may access and use the Licensed Products at any time. Customer may transfer the license from one User to another only when the original User no longer requires access and is no longer permitted access to the Licensed Product at any time without additional fee.
n. “User License” means a right to create and/or use an electronic identity, representing an individual enduser, within a Licensor Product.
2. Product Licenses
a. Licensor Software Licenses: Subject to the terms and conditions of this Agreement, Licensor hereby grants to the Customer and Customer accepts a non-exclusive, perpetual license to Licensor’s Software in order to: (I) make copies of Licensor’s Software to the extent licensed hereunder; and (II) use each copy of Licensor’s Software to the extent licensed hereunder (the “License”).
b. The License shall apply to one of the following permitted uses as set forth in the attached Product Schedule:
i. Per-GB Consumption-based licensing based on total network traffic observed and analyzed by Licensor’s product.
c. Provision Covering All Products: Customer may deploy unlimited copies of PacketSled sensors. Each permitted copy of all or part of a Product must include all copyright notices, restricted rights legends, proprietary markings and the like exactly as they appear on the copy delivered by Licensor to Customer. Customer may not rent, lease, sell, sublicense, assign, distribute or otherwise transfer a Product, except as provided in this Agreement. The Products, including any related copyright, trademark, and patent rights are owned by Licensor and will remain the sole and exclusive property of Licensor. Customer shall not copy, modify or merge copies of the Products except as provided in this Agreement. Customer shall not reverse engineer, de-compile or disassemble the Products.
d. Third Party Technology: Licensor’s Software may incorporate software and other technology owned and controlled by third parties (“Third Party Technology”). Licensor is licensed to distribute Third Party Technology. All Third Party Technology falls under the scope of this Agreement. By signing and accepting the terms and conditions of this Agreement, you accept any third party end user license agreement. All third parties are a beneficiary of this Agreement with respect to Third Party Technology, and as such, relevant terms and conditions are enforceable by the Third Party.
3. Product Services
a. Maintenance: Pursuant to this Agreement, Customer will also purchase Product Maintenance and Licensor will provide Maintenance services to Customer subject to the terms set forth in Section 13.
b. Other Services: Licensor may, subject to availability of qualified personnel, make network and security engineering services available to Customer pursuant to a separate statement of work to be negotiated in good faith. Licensor will also make commercially reasonable efforts to make available to Customer, training concerning Products at Licensor’s then-published rate. All such training shall be conducted by qualified personnel familiar with the Products.
4. Price and Payment
a. Price: Prices and fees are set forth in the applicable Quote.
b. Payment: The Licensing Fee is payable upon the terms set forth in the quote and subsequent purchase order (PO) attached hereto and incorporated herein. The fees associated with Product Maintenance, are payable annually in advance due upon the Maintenance Start Date and each anniversary thereof, for the upcoming year. All amounts payable under this Agreement shall be paid to Licensor within thirty (30) days of the date of receipt of an invoice by Customer.
5. Orders and Delivery
a. Product Orders: Customer may order additional Products under this Agreement at the then current market rate or as negotiated for the Product(s) being ordered. Any order for Products delivered by Customer to Licensor during that period shall be deemed to be delivered pursuant to terms of this Agreement unless the Parties agree otherwise. An order shall be in writing and identify the Product(s) being ordered, the quantity of Server or User Licenses required (where applicable), and the shipping method and invoicing locations. All other terms and conditions on such order shall be of no contractual effect between the Parties unless Licensor otherwise agrees in writing.
b. Product Delivery: Licensor shall transfer electronically to Customer copies of each Product as specified in an executed PO and the corresponding documentation within 30 days of receipt of a PO for the Product(s) specified therein.
6. Product Warranty and Warranty Limitations
a. Product Warranty: Licensor warrants that:
i. each Product will perform in material accordance with the accompanying user documentation (paper and electronic) for a period of 30 days from the date of delivery and for so long thereafter as Customer contracts for Maintenance;
ii. at the time of delivery, the Product(s) will be free of any computer viruses, time bombs or other malicious hidden routines which could intentionally cause damage to or corrupt data, storage media or equipment.
b. Exceptions to Warranty: Notwithstanding the foregoing, Licensor:
i. has no obligation to resolve problems related to a Product if caused by:
1. relocation, movement, improper operation, neglect or misuse of the Product,
2. Customer’s failure to maintain proper site or environmental conditions,
3. any fault of Customer’s agents or employees,
4. any attempts at repairs, maintenance, or modifications to the Product performed by other than authorized service personnel of Licensor,
5. casualty, act of God, strikes, riot, war, the unauthorized acts of third parties,
6. failure or interruption of any electrical power, telephone or communication line or like cause, or
7. any other cause external to the Product except ordinary use.
ii. may deliver third party software with its Products to Customer for installation and use in conjunction with its Products. While such third party software is not covered under Section 8, as of the date of this Agreement, Licensor represents that it has no material knowledge that such software does not function properly, contains any computer virus, or infringes any third party intellectual property right. To the extent possible, Licensor shall pass through to Customer the warranty, if any, of each third party software provider.
c. Remedy for Breach of Warranty: Except as specifically stated herein, Licensor’s sole liability and the Licensor’s exclusive remedy for breach of the provisions of this Section 6 shall be, at Licensor’s option, either to repair or replace the Product that does not meet the Licensor warranty and which is returned to Licensor. Any replacement Product will be warranted for the remainder of the original warranty period or 30 days, whichever is longer.
d. No Other Warranties or Remedies: Except as specifically stated herein, Licensor disclaims all other warranties, representations, conditions, and remedies for breach of this Section 6, either express or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose, with respect to Products provided hereunder. This exclusion also applies to any of Licensor’s subcontractors, suppliers or Product developers.
7. Intellectual Property
a. Customer acknowledges that title to each Product shall at all times remain with Licensor, and that Customer has no rights in the Product or Software except those expressly granted by this Agreement. Customer agrees not to remove or destroy any proprietary markings or proprietary legends placed upon or contained with any Product or any related materials or documentation by Licensor. Each permitted copy of all or part of a Product must include all copyright notices, restricted rights legends, proprietary markings and the like exactly as they appear on the copy delivered by Licensor to Customer. Customer may not rent, lease, sell, sublicense, assign, distribute or otherwise transfer a Product, except as provided in this Agreement. The Product(s), whether existing, in development or developed in the future, including any related copyright, trademark, and patent rights are owned by Licensor and will remain the sole and exclusive property of Licensor. Customer shall not copy, modify or merge copies of the Product(s) except as provided in this Agreement. Customer shall not reverse engineer, de-compile or disassemble the Product(s).
b. Licensor shall maintain sole control and discretion over the prosecution and maintenance with respect to all rights, including all intellectual property rights in and to the Software. Licensor shall have the primary right, but not the obligation, to bring and control any suits against any unauthorized use, infringement, misappropriation, dilution or other violation of the Licensed IP. Licensor shall be entitled to retain the entirety of any award arising from such suit.
c. The Parties shall cooperate to police diligently the Software. Customer shall promptly notify Licensor in writing of any unauthorized use, infringement, misappropriation, dilution or other violation of the Software of which it becomes aware.
d. All data created and / or processed by the Product is and remain the property of Customer and shall in no way become attached to the Product, nor shall Licensor have any rights in or to the data of Customer.
8. Infringement Indemnity
a. Mitigation: If either Party receives notice of a potential claim or an injunction is obtained against Customer’s use of any Product in whole or in part, as a result of a claim, Licensor, at its sole option and expense, may make commercially reasonable efforts either to:
i. procure for Customer the right to continue using the Product; or
ii. replace or modify the Product with equivalent or better product so that Customer’s use is not subject to any injunction, failing which Licensor may refund the price of the affected portion of the Product and any related Server or User Licenses.
b. Exceptions to Indemnity: Licensor shall have no liability, and shall be indemnified and held harmless by Customer, with respect to any Product, including the use thereof, in the event that such Product:
i. is used by Customer in a manner or for a purpose other than that for which it was supplied,as contemplated by Licensor’s published documentation thereof;
ii. is modified by Customer without the written consent of Licensor; or
iii. is used by Customer in combination with other products not provided by Licensor and any infringement arises from such combination or the use thereof.
c. Limit to Indemnity: either Party’s cumulative liability under this Section 8 shall not exceed $50,000. The provisions of this Section 8 state the sole and exclusive remedy of Customer, with respect to any Claim of the nature described herein.
a. Ownership. All Confidential Information shall remain the property of the communicating Party and shall be returned to such Party upon termination of this Agreement or immediately upon request by such communicating Party.
b. Obligation of Nondisclosure. Each Party agrees and acknowledges that it shall have no proprietary interest in the Confidential Information of the other Party and will not disclose, communicate nor publish the nature or content of such information to any person or entity (except to those employees or representatives as necessary to carry out such Party’s obligations under this Agreement), nor use, except as authorized in writing by the communicating Party, any of the Confidential Information they receive, acquire or obtain from such Party. Each Party shall immediately advise its employees and others to whom the Confidential Information is disclosed of their strict obligations under this Agreement and shall take all necessary steps to insure that the Confidential Information is securely maintained, but in all cases no less than reasonable care and discretion. In the event either Party becomes legally compelled to disclose any of the Confidential Information, such Party shall provide the other with prompt notice thereof and shall not divulge any information until the non-disclosing Party has had the opportunity to seek a protective order or other appropriate remedy to curtail such disclosure. If such actions by such Party are unsuccessful, or the non-disclosing Party otherwise waives its right to seek such remedies, the disclosing Party shall disclose only that portion of the Confidential Information which it is legally required to disclose. The obligations of the Parties under this Section 9 shall survive for a period of seven (7) years beyond the termination of this Agreement.
c. This Section 9 will work in conjunction with any previous confidentiality or non-disclosure agreements signed by the parties, and all other agreements, including the non-disclosure agreement dated ______ and its terms are incorporated into the Agreement by reference.
10. Limitation of Liability
A. IN NO EVENT SHALL LICENSOR OR ANY OF LICENSOR’S SUBCONTRACTORS, SUPPLIERS OR PRODUCT DEVELOPERS OR CUSTOMER BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR THE INABILITY TO USE A PRODUCT. NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES RESULTING FROM RECKLESS OR INTENTIONAL MISCONDUCT; (II) DAMAGES ARISING FROM BREACH OF SECTION 9; OR (III) CLAIMS FOR INJURY TO INDIVIDUALS OR DAMAGE TO PERSONAL PROPERTY (OTHER THAN SOFTWARE) CAUSED BY THE NEGLIGENCE OF SUCH PARTY OR ANY OF ITS EMPLOYEES OR MUTUALLY AGREED-UPON CONTRACTORS.
11. Termination of License
a. Termination by Licensor: Licensor may terminate this Agreement without notice if Customer:
i. assigns or attempts to assign this Agreement or any of Customer’s rights hereunder to a third party except as provided for in Subsection 14(g);
ii. neglects or fails to perform or observe, or correct a breach of, its obligations to Licensor as described in this Agreement (except the provisions in Section 10) within thirty (30) days after notification from Licensor of such neglect, failure to perform or observe, or breach; or
iii. files a bankruptcy petition or has such a petition filed involuntarily against it, becomes insolvent, makes an assignment for the benefit of creditors, consents to the appointment of a trustee, or if bankruptcy, reorganization or insolvency proceedings are instituted by or against Customer.
b. Termination by Customer: Customer may terminate this Agreement without notice if Licensor:
i. neglects or fails to perform or observe, or correct a breach of, its obligations to Customer within thirty (30) days after notification from Customer of such neglect, failure to perform or observe, or breach; or
ii. files a bankruptcy petition or has such a petition filed involuntarily against it, becomes insolvent, makes an assignment for the benefit of creditors, consents to the appointment of a trustee, or if bankruptcy, reorganization or insolvency proceedings are instituted by or against Licensor.
c. Effects of Termination: In the event of such termination by Licensor, Customer shall destroy or return immediately all Products and all copies thereof to Licensor.
12. Marketing, Publicity, Branding and Reference
a. Marketing: Customer shall reasonably assist Licensor in the creation and where applicable distribution of marketing and publicity-related materials relating to the subject matter of this Agreement. Customer agrees Licensor may use Customer’s brand logo and corporate name to identify Customer as a customer of Licensor. Licensor’s use of Customer’s brand logo or corporate name will be subject to Customer’s reasonable review and approval of the materials prior to publication, which approval will not be unreasonably withheld or delayed.
b. Reference: During the Term of this Agreement, Customer agrees to serve as a customer reference for prospective customers of Licensor. Customer shall not be required to participate in more than five (5) calls per calendar year for this purpose.
c. Case Study: Upon Licensor’s request, Customer shall co-operate with Licensor in the development of a case study describing Customer’s use of the Product, provided, however that Licensor shall assume primary responsibility for the preparation of such case study. The resulting case study will be reviewed and agreed upon by Customer, which approval will not be unreasonably withheld or delayed.
13. Product Maintenance
a. Scope of Maintenance:
i. Term: The term for Maintenance begins on the Maintenance Start Date and shall continue for a period of one year (the “Term”). Thereafter, Product Maintenance shall automatically renew for successive terms of one year, provided Customer pays to Licensor the applicable Maintenance Fee (each a “Renewal Term”). Licensor shall offer the Maintenance services for a period of ten (10) years.
ii. Products Covered: The PacketSled Customer Support department shall provide to Customer’s IT department Maintenance services for each of the Products licensed by Customer, except for any third party software delivered with any Product. The Maintenance services for a Product will be provided only with respect to the then current release of the Product and on the then previous sequential release for up to twelve (12) months after the commercial release of the subsequent release of the Product.
b. Product Maintenance Fees:
i. Initial Fee: Customer shall pay to Licensor an annual maintenance fee as listed on the attached applicable Quote.
ii. Fee on Renewal: For each successive Renewal Term, Customer shall pay to Licensor an annual Maintenance fee. Licensor may increase its Maintenance fees at the beginning of any Renewal Term. iii. Fee for Reinstatement: Customer shall incur reinstatement charges if it allows Maintenance to lapse and requests subsequent renewal up to 1 (one) year from the time the Maintenance lapses. The reinstatement charges are the then current reinstatement Maintenance fee rates in effect at the time of the reinstatement for the lapsed period.
c. Maintenance Services:
i. Problem Resolution during Business Hours: Licensor will provide Customer with email and telephone access from 9:00 AM to 5:00 PM PST, Monday to Friday with the exception of the statutory holidays observed in the United States of America (“Regular Business Hours”). Licensor shall promptly, and in any event within four (4) hours of Licensor’s receipt notice of a Severity 1 or Severity 2 problem (see Subsection 13(d) below), respond to such notice from Customer’s IT department. After receipt of notice of a Severity 1 or Severity 2 problem, Licensor shall make its best effort to resolve and correct a Severity 1 error, defect or nonconformity within forty-eight (48) hours from notification and resolve and correct a Severity 2 error, defect or nonconformity within five (5) continuous business days from notification. Such resolution and correction may be provided to Customer as a Software fix or workaround. For Severity 1 and Severity 2 problems, Licensor shall advise Customer periodically at reasonable intervals as to the progress made by Licensor in diagnosing and/or correcting any reported error, defect or nonconformity.
ii. Other Problem Resolutions: In the event of a (i) Severity 3 or Severity 4 problem, Licensor may include the error correction in the next Upgrade and/or Hotfix (ii) Severity 5 problem, Licensor may include the enhancement request in the next Upgrade and/or Hotfix.
iii. Notice of Material Defects: Licensor shall provide Customer with reasonable notice of all material known problems, defects, errors or nonconformities in the Products or Documentation (together with suggested remedial action, if any), as such problems, defects, errors or nonconformities become known or are reported to Licensor.
iv. Upgrades and Hotfixs: Licensor shall promptly provide Customer with all Upgrades and Hotfixs along with documentation associated with such Upgrades and Hotfixs.
v. Extended Support Services: Licensor can provide Extended Support Services on an ad hoc basis if requested by Customer. This may include but not be limited to, on-site installation assistance, training, or problem diagnosis and resolution. These services are not included in this Product Maintenance Section, and will be charged at Licensor’s then current applicable rate plus related expenses as mutually agreed upon in advance between Licensor and Customer.
d. Problem Classification: When Customer reports a problem or incident, Licensor will, in consultation with Customer, first classify the problem or incident according to its severity and nature. It will then be logged in Licensor’s problem tracking system. The following classification scheme will be used to categorize problems:
Severity 1: Critical error which completely disables the product for which no work-around exists.
Severity 2: Either a critical error for which a work-around exists or else a non-critical error.
Severity 3: Isolated error which does not significantly affect the functionality of the software. Severity
4: A benign error.
Severity 5: Product enhancement request.
e. Excluded Services: Licensor shall have no obligation to provide support services under this Agreement where a problem is caused by:
i. relocation, movement, improper operation, neglect or misuse of the Product,
ii. Customer’s failure to maintain proper site or environmental conditions,
iii. any fault of Customer’s agents or employees,
iv. any attempts at repairs, maintenance, or modifications to the Product performed by other than authorized service personnel of Licensor,
v. casualty, act of God, strikes, riot, war, the unauthorized acts of third parties,
vi. failure or interruption of any electrical power, telephone or communication line or like cause, or
vii. any other cause external to the Product except ordinary use.
f. Discontinued and superseded licensed Products:
i. Superseded Products: Licensor’s obligation to support any previous release of a Product shall terminate upon the expiration of 12 months following the commercial release of the then-current release of the Product.
ii. Discontinued Products: Licensor will provide support for discontinued Products for at least 1 year after the date at which a Product is discontinued. Licensor reserves the right to replace discontinued Products with the replacement Product and negotiate with Customer the additional cost, if any, provided that any such additional cost is negotiated in good faith by Licensor and Customer and equitably reflects Customer’s need or desire for any additional functionality in the replacement Product.
g. Return of defective media: Customer shall return all defective media directly to Licensor’s Support department. Before shipment, Customer shall obtain from Licensor’s Support department (a) approval of the intended recipient; and (b) a return authorization number.
h. Term and Termination: Either Party may terminate Product Maintenance at the end of contract by written notice to the other at least thirty (30) days before expiration of the initial or renewal term. In the event either Party shall be in breach of, or fail to perform one or more of its material obligations under this Section
13, the other Party may, by written notice to the Party in breach, require the remedy of the breach or the performance of the obligation and, if the Party so notified fails to remedy or produce a reasonable plan to remedy (which if such plan is not followed by the breaching Party shall entitle the other Party to terminate Product Maintenance immediately), or perform within thirty (30) days of the written notice, declare the Party in breach to be in default and terminate Product Maintenance.
a. Audit Rights: Customer shall keep reasonable records relating to the number of copies of Products made or in use. A chartered or certified public accountant certified by Licensor may, upon reasonable notice, during normal business hours, but no more often than once a year, inspect the records of Customer as is necessary to certify the number of Server or User Licenses in use during the term of this Agreement.
b. U.S. GOVERNMENT END-USERS: Each Product is a “commercial item,” as that term is defined at 48 C.F.R.
2.101 (JAN 1998), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (SEPT 1995), and is provided to the U.S. Government only as a commercial end item. Government end users acquire any Product under the following terms: i) for acquisition by or on behalf of civilian agencies, consistent with the terms set forth in 48 C.F.R. 12.212 (SEPT 95); or ii) for acquisition by or on behalf of units of the Department of Defense, consistent with the terms set forth in 48 C.F.R. 227.7202.
c. Export Restrictions: Export of Software outside of the U.S.A. and Canada may require approval of Government export and import authorities. Licensor shall make reasonable efforts to assist Customer in obtaining required export approvals for Software.
d. Provision Concerning Licenses: If Customer is granted a license to a Product that is not specified by a number of copies or Server or User Licenses, then upon the occurrence of a material change to Customer by way of: (I) a consummated merger; or (II) purchase or other acquisition of all or substantially all the assets of another person; or (III) sale or other disposition of all or substantially all the assets of Customer to another person, the Parties shall negotiate in good faith an additional price to be paid to Licensor reflective of the increased potential usage available to Customer.
e. Force Majeure: Neither Party shall be deemed in default hereunder or liable for any loss or damage resulting from delays in performance or from failure to perform or comply with the terms of this Agreement due to any causes beyond its reasonable control, which causes include but are not limited to acts of God or the public enemy; riots and insurrections, war, accidents, fire, strikes and other labor difficulties (whether or not the Party is in a position to concede to such demands), embargoes, judicial action, lack of or inability to obtain export permits or approvals, necessary labor, materials, energy, components or machinery acts of civil or military authorities.
f. Waiver: The failure of a Party to claim a breach of any term of this Agreement shall not constitute a waiver of such breach or the right of such Party to enforce any subsequent breach of such term.
g. Assignment: Neither Customer nor Licensor shall assign this Agreement, any interest herein or any rights hereunder without the prior written consent of the other Party, except that:
(I) Customer may assign this Agreement, except any license that is not specified by a number of copies or Server or User Licenses, to any Party which acquires all or substantially all of its related business by merger, sale of assets, or otherwise; and
(II) Licensor may assign this Agreement to any Party which acquires all or substantially all of its related business by merger, sale of assets, or otherwise; and
(III) Licensor may assign its rights and obligations hereunder to the extent related performance outside the U.S.A. to one or more of its Affiliates which ordinarily carries on business there.
h. Survival: These terms and conditions, which by their nature should survive expiration or termination of this Agreement, including, but not limited to, Sections 6, 7, 8, 9, and 10, shall remain in force upon the event of such expiration or termination. i. Governing Law: This Agreement shall be governed by the laws of the State of California, without regard to its conflict of law principles.
j. Nature of Relationship: The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
k. Bankruptcy: Licensor and Customer hereby acknowledge that this Agreement involves rights in and to “intellectual property,” as that term is defined by the United States Bankruptcy Code and anyamendments thereto. If during the initial term or any subsequent renewal of this Agreement, Licensor files or otherwise become the subject of any case under the federal bankruptcy laws, Customer shall retain all rights and remedies afforded to Customer pursuant to Section 365(n) of the bankruptcy code and all other applicable provisions of bankruptcy law, the terms and conditions of this Agreement notwithstanding.
l. Entire Agreement: This Agreement and any order made hereunder constitutes the entire Agreement between the Parties on the subject matter hereof and supersedes, except as indicated in this Agreement, prior agreements communications, terms and conditions, and understandings of any nature whatsoever, oral or written. This Agreement may not be modified or waived orally and may be modified only in a writing signed by a duly authorized representative of both Parties.