WinCan Software License, Support Service and Professional Services

Terms and Conditions

These Terms and Conditions, together with any Order or Statement of Work agreed to by Company and Customer (collectively referred to as the “Agreement”) will solely govern all Products and Services, as defined below, provided by Company to Customer.

1. For purposes of this Agreement:

“Company” means WinCan AG or its affiliates or subsidiaries.

“Confidential Information” means all information or material which (i) gives a party some competitive business advantage, gives a party the opportunity of obtaining some competitive business advantage, or the disclosure of which could be detrimental to the interests of a party; and (ii) which is either (A) marked “Confidential,” “Restricted,” or “Proprietary Information” or other similar marking, (B) known by the parties to be considered confidential and proprietary or (C) from all the relevant circumstances should reasonably be assumed to be confidential and proprietary. The Documentation and Products are deemed the Confidential Information of Company.

“Customer” means the person or entity listed on one or more ordering documents or authorized user of the Products or recipient of Services.

“Documentation” means Company’s then current generally available documentation, specifications, user manuals, etc. for the Products and Services.

“Products” means any hardware, software, Documentation, Cloud Services, accessories, cabling, material, supplies, parts, and other goods that Company sells or resells to Customer.

“Product Support” means any maintenance and support of any Products provided by Company.

“Purchase Order” means a purchase order or other similar document or communication from Customer to Company delivered in connection with a sales quote or an SOW.

“Statement of Work” or “SOW” means a statement of work that defines the specifics of the Services to be performed by Company under this Agreement.

“Services” means any professional services, including implementation and installation services agreed upon by the parties and set forth in a SOW or any Product Support purchased pursuant to an Order.

2. Customer may place an order for Products or Services (each, an “Order”) by: (i) with respect to Products, submitting the Order to Company on Customer’s standard Purchase Order form, an alternate order form approved by Company, or electronic means acceptable to Company; or (ii) with respect to Services, executing and delivering to Company an SOW. Customer’s Order shall be deemed to incorporate these terms and conditions with or without reference in the Order to this Agreement. Orders for Products shall identify the Products, unit quantities, part numbers, descriptions, applicable prices and requested delivery dates. All Orders are subject to acceptance by Company, which acceptance may be evidenced by: (a) with respect to Products, either a written confirmation of Company acceptance sent by mail, facsimile, or other electronic means, or by shipment of the Products; or (b) with respect to Services, by the execution and delivery of the SOW by Company. Except as provided in Section 11.2.2 below, no Orders for Products may be terminated, cancelled, or rescheduled without Company’s consent. If Customer asks Company to cancel or reschedule a Product Order less than ten (10) days before the original scheduled shipping date, and Company consents to such cancellation or reschedule, then such Order shall be subject to a charge of fifteen percent (15%) of the total invoice amount relating to the affected Products. Company reserves the right to allocate sales of Products and Services among its customers in its sole discretion.
3. • Delivery and Title. All shipments by Company are FCA, Company’s location (Incoterms 2020), and all transportation charges (if applicable) shall be paid by Customer in addition to the price of the Products. Subject to Company’s right of stoppage in transit, delivery of the Products to the carrier shall constitute delivery to Customer and title and risk of loss shall thereupon pass to Customer. Selection of the carrier and delivery route shall be made by Company, unless specified by Customer. Company shall use commercially reasonable efforts to initiate shipment and schedule delivery as close as possible to Customer’s requested delivery dates. Customer acknowledges that delivery dates provided by Company are estimates only and that Company is not liable for failure to deliver on such dates, provided that Company will use commercially reasonable efforts to inform Customer of delivery status. Company reserves the right to make deliveries in installments. Delivery of a quantity which varies from the quantity specified in any Order shall not relieve Customer of the obligation to accept delivery and pay for the Products delivered. Delay in delivery of one installment shall not entitle Customer to cancel other installments.
   • Cloud Services. Company may provide access to certain Web-based or other online Products (the “Cloud Services”). Unless provided otherwise in any terms and conditions accompanying the Cloud Services, Company grants Customer a non-exclusive, non-transferable license to use the Cloud Services solely in connection with its use of the associated Products. Company will use commercially reasonable efforts to make the Cloud Services available for Customer’s access and use, as contemplated under this Agreement, an average of at least ninety-nine (99%) of the time during each month during the Term (the “Availability Requirement”), excluding any period of Permitted Unavailability.  “Permitted Unavailability” includes Planned Outages (as defined below) and any unavailability due to causes beyond Company’s reasonable control, including, without limitation:  any software, hardware, or telecommunication failures; interruption or failure of telecommunication or digital transmission links; Internet slow-downs or failures; failures or default of third party software, vendors, or products; and unavailability resulting from Customer’s actions or inactions or a failure of Customer’s communications link or systems.  “Planned Outages” means the period of time during which Company conducts systems maintenance and any instances requiring emergency maintenance.  Company will use reasonable efforts to schedule Planned Outages during non-peak hours. In the event of any failure to achieve the Availability Requirement, Company will use commercially reasonable efforts to correct the interruption as promptly as practicable. In the event Company fails to achieve the Availability requirement, Company will use commercially reasonable efforts to correct the interruption as promptly as practicable. In the event Company fails to achieve the Availability requirement in two (2) consecutive months during the term of this Agreement, Client may terminate this Agreement with regard to Product constituting the Cloud Services within thirty (30) days of the end of the second consecutive month, without further obligation and receive a prorated refund of any pre-paid, unused recurring fees. The refund will constitute Customer’s sole and exclusive remedy and Company’s sole and exclusive liability for failure to achieve the Availability requirement.
   • Connectivity. Customer is solely responsible for all telecommunication or Internet connections and associated fees required to access the Cloud Services, as well as all hardware and software on the Customer site.
   • Data Privacy. Customer grants Company a non-exclusive, world-wide, royalty-free license to use the data and other information input by Customer into the Cloud Services (the “Customer Data”) for purposes of performing this Agreement. Customer will be responsible for obtaining all rights, permissions, and authorizations to provide the Customer Data to Company for use as contemplated under this Agreement. Except for the limited license granted in this Section, nothing contained in this Agreement will be construed as granting Company any right, title, or interest in the Customer Data. Customer Data shall be deemed Customer Confidential Information.

Customer acknowledges that, in rendering the Services, Company may process Customer Data that qualifies as personal data under applicable laws, including the EU GDPR (“Personal Data”). Customer is responsible for ensuring the lawfulness of collecting, processing and disclosing such Personal Data. Company will process Personal Data solely for the purpose of providing the Services, complying with its legal obligations, and as further described in Company’s Privacy Policy. The respective obligations of both parties are set forth in a separate Data Processing Agreement.

• Information Security. Consistent with any law or regulation applicable to Company and its performance of this Agreement and consistent with Company’s then current practices and procedures, Company will maintain and enforce administrative, technical, and physical safeguards to reasonably protect the confidentiality, availability, and integrity of Customer’s Confidential Information and the Customer Data. Company will promptly report to Customer any compromise of security that it becomes aware of with regard to Customer Data.
• Disaster Recovery; Business Continuity. Company has developed and implemented a disaster recover/business continuity plan (the “Plan”) for the Cloud Services. On request, Company will furnish Customer a copy of the Plan, which shall be deemed Company confidential Information. Consistent with its then current practices, Company will periodically test and re-assess the Plan and, on request, provide Customer with copies of any updated versions of the Plan.
• Use of Products in Certain Applications. Products sold by Company are not designed, intended or authorized for use in life support, life sustaining, nuclear, or other applications in which the failure of such Products could reasonably be expected to result in personal injury, loss of life or catastrophic property damage. If Customer uses or sells the Products for use in any such applications: (i) Customer acknowledges that such use or sale is at Customer’s sole risk; (ii) Customer agrees that Company and the manufacturer(s) of the Products are not liable, in whole or in part, for any claim or damage arising from such use; and (iii) Customer will indemnify, defend and hold Company and the manufacturer(s) of the Products harmless from and against any and all claims, damages, fines, sanctions, losses, costs, expenses and liabilities arising out of or in connection with such use or sale.
• Export/Import Control Compliance. The sale, resale or other disposition of Products and any related technology or documentation may be subject to the export control laws, regulations and orders of the United States and may be subject to the export and/or import control laws and regulations of other countries. Customer is solely responsible for complying with all such laws, regulations and orders and acknowledges that it shall not directly or indirectly export or import any Products to any country to which such export or transmission is restricted or prohibited. Customer understands and acknowledges its responsibility to obtain any license to export, re-export or import as may be required.
• Restrictions. Customer may not: (i) reverse engineer, disassemble, decompile or otherwise attempt to reveal the trade secrets or know how underlying the Products, except to the extent expressly permitted under applicable law; (ii) use Company’s intellectual property and Confidential Information to develop a product that is similar to the Products; (iii) use any Company Confidential Information to contest the validity of any Company intellectual property; (iv) remove or destroy any copyright notices, other proprietary markings or confidentiality legends placed on or made available through the Products; or (v) use the Products in any manner or for any purpose inconsistent with the terms of this Agreement or the Documentation. Software Products shall only be used for the licensed number of nodes, networks, or hosts for which Customer has paid the applicable fees.
• Intellectual Property. This is not a work made-for-hire agreement (as that term is defined in Section 101 of Title 17 of the United States Code). Company and its licensors and manufacturers own all right, title, and interest, including intellectual property rights, in the Products and Services and all enhancements, modifications, and updates thereto. Except for express licenses granted in this Agreement, Company is not granting or assigning to Customer any right, title, or interest, express or implied, in or to Company’s intellectual property. Company reserves all rights in such property.
• Feedback. Customer may provide Company with suggestions, comments or other feedback (collectively, “Feedback”) with respect to the Products and Services. Feedback is voluntary. Company is not obligated to hold it in confidence. Company may use Feedback for any purpose without obligation of any kind. To the extent a license is required under any Customer intellectual property rights to make use of the Feedback, Customer grants Company an irrevocable, non-exclusive, perpetual, royalty-free license to use the Feedback in connection with Company’s business, products, and services, including the enhancement of the Products and Services.
• Limited Software License. Unless provided otherwise in specific Company end user terms and conditions accompanying a Product, Company grants Customer a limited, non-transferable, non-exclusive license to use software Products solely for Customer’s internal business purposes and solely in connection with any designated associated hardware Products. The term of the license shall be for the period set forth in the sales quote and associated Order. With regard to any firmware (software embedded in and provided with a hardware Product; as opposed to stand-alone software), Company grants Customer a limited, non-transferable, non-exclusive license to use the firmware solely in connection with Customer’s use of the related hardware Product. Customer may not distribute the firmware in any form, or to use the firmware except as it is embedded in the non-volatile memory component(s) of the hardware Product. All software Products, including embedded software, are licensed, not sold. Apart from the foregoing limited licenses, Customer is not being granted any right, title, or interest in or to the software Products. All such rights are expressly reserved by Company.
• Third Party Products. Certain Products may be manufactured by third parties and resold to Customer (the “Third Party Items”). Third Party Items may be subject to third party terms and conditions, including end user license agreements, accompanying the Products at the time of delivery (the “Third Party Terms”).   Customer’s use of the Third Party Items will indicate its agreement to be bound by the Third Party Terms. COMPANY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED WITH REGARD TO ANY THIRD PARTY ITEMS. COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE/NON-INFRINGEMENT, QUALITY OF INFORMATION, QUIET ENJOYMENT, AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE THIRD PARTY ITEMS. CUSTOMER SHOULD CONSULT THE RESPECTIVE VENDORS/MANUFACTURERS OF THE THIRD PARTY ITEMS FOR WARRANTY AND PERFORMANCE INFORMATION, INCLUDING ANY THIRD PARTY TERMS.
• Aggregated Data. Customer grants Company a non-exclusive, perpetual, irrevocable, fully-paid-up, royalty free license to use data collected, transmitted, or derived from use of the Products and Services (the “Aggregated Data”) for Company’s business purposes, including the improvement of its products and services, training of its Artificial Intelligence models, and provision of products and services to Company’s other customers. In connection with these uses, the Aggregated Data will be combined with similar data from other customers and not identifiable to Customer. The Aggregated Data will not be considered Customer Confidential Information. “Artificial Intelligence” means a machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations or decisions influencing real or virtual environments

4. Product Support.
   • In General. Company will provide Customer with Product Support as outlined in the Company’s Documentation provided at the time of quotation.

• Exclusions. Notwithstanding the foregoing, Company will have no obligation to support: (a) services, hardware, or software provided by anyone other than Company; or (b) Product issues caused by Customer’s negligence, abuse or misapplication, Customer’s use of Products other than as specified in the Documentation, or by other factors beyond the control of Company.
• Customer Support Obligations. Customer has the following obligations: (i) Customer will provide Company with reasonable remote access to its systems for purposes of rendering support; and (ii) Customer will ensure the appropriate Customer personnel have been trained in the operation, support, and management of the Products.

5. The following provisions relate to Services (other than Product Support, which is governed by Section 4):
   • SOWs. SOWs will include the following: (i) a description of the Services and the Deliverables to be provided by Company; (ii) the timeframe for the Services and compensation to be paid to Company; (iii) any additional terms and conditions for the Services; and (iv) each party’s responsibilities. Each SOW must be signed by duly authorized representatives of both parties to be effective. Unless otherwise provided in an SOW, Company will be compensated for Services on an hourly basis in accordance with Company’s then current time and materials rates. Fees related to certain Services in an SOW may be variable or may be adjusted if certain Services assumptions, including project timeframes or scope of Services, increase, change or are incorrect. Notwithstanding the foregoing, any changes to an SOW will be made in a writing signed by duly authorized representatives of both parties. Each SOW will be attached to, incorporated into, and governed by this Agreement by reference. Company will only be responsible for performing those Services expressly identified in an SOW. Company will use reasonable efforts to complete the Services within the times, if any, set forth in the SOW.
   • Customer Obligations. In connection with the Services provided under each SOW, Customer will, at all times and diligently and in good faith, comply with Company’s reasonable requests to furnish Company or perform, at Customer’s expense: (i) all technical matter, data, information and operating supplies, together with knowledgeable personnel, as reasonably determined by Company to be necessary for the performance of the SOW; (ii) access to Customer facilities, systems, and personnel; and (iii) any other specific obligations of the Customer set identified in the SOW. Company’s ability to perform the Services is contingent on the foregoing obligations and any other assumptions provided in the SOW.
6. Payment Terms.
   • Prices. Prices will be specified by Company and will be applicable for the period specified in the Company sales quote or the SOW (as applicable). If no period is specified, prices will be applicable for thirty (30) days. Notwithstanding the foregoing, prices will be subject to increase in the event of an increase in Company’s costs or other circumstances beyond Company’s reasonable control. Prices are exclusive of taxes, including sales, use, excise, value added and similar taxes or charges imposed by any government authority; domestic and international shipping charges. Customer is responsible for payment of the foregoing (with the exception of any Company income or employee taxes) and such charges will be paid by Customer to Company in addition to the price of the Products and Services.
   • Due Date; Late Payments. Amounts due for each Product may be invoiced by Company upon delivery of the Product to the carrier at the point of origin; as such, an order for multiple Products may result in multiple invoices. Amounts due for Services may be invoiced by Company monthly or as otherwise expressly provided in the SOW. Product Support services are invoiced on an annual basis in advance. Customer agrees to pay the net amount of each invoice without offset or deduction within thirty (30) days after the date of Company’s invoice (unless otherwise noted on the invoice). If any amount is not paid upon the due date, Company shall be entitled to receive the amount due plus interest thereon at the rate of 1.5% per month (or such lower rate as shall be the highest permissible contract rate under applicable law) on all amounts that are not paid on or before the date due. Customer shall also pay all of Company’s reasonable costs of collection, including but not limited to reasonable attorney's fees.
7. • Confidential Information. During the course of this Agreement, each party may disclose to the other certain Confidential Information to the other party. Notwithstanding the foregoing, Confidential Information does not include information that: (a) is or becomes publicly available through no breach by the receiving party of this Agreement; (b) was previously known to the receiving party prior to the date of disclosure, as evidenced by contemporaneous written records; (c) was acquired from a third party without any breach of any obligation of confidentiality; (d) was independently developed by a party hereto without reference to Confidential Information of the other party; or (e) is required to be disclosed pursuant to a subpoena or other similar order of any court or government agency, provided, however, that the party receiving such subpoena or order shall promptly inform the other party in writing and provide a copy thereof (unless notice is precluded by the applicable process), and shall only disclose that Confidential Information necessary to comply with such subpoena or order.
   • Protection of Confidential Information. Except as expressly provided in this Agreement, the receiving party will not use or disclose any Confidential Information of the disclosing party without the disclosing party's prior written consent, except disclosure to and subsequent uses by the receiving party's employees or consultants on a need-to-know basis, provided that such employees or consultants have executed written agreements restricting use or disclosure of such Confidential Information that are at least as restrictive as the receiving party's obligations under this Section 7. Subject to the foregoing nondisclosure and non-use obligations, the receiving party agrees to use at least the same care and precaution in protecting such Confidential Information as the receiving party uses to protect the receiving party's own Confidential Information and trade secrets, and in no event less than reasonable care. Each party acknowledges that due to the unique nature of the other party's Confidential Information, the disclosing party will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Confidential Information. In addition to any other remedies that may be available in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure.
8. Warranties and Disclaimers.
   • Product Warranties. Unless expressly provided otherwise in a Product warranty in terms and conditions accompanying a Product, all Products shall materially conform to their then current Documentation for a period of thirty (30) days from the date of initial delivery. Customer must notify Company of any breach of this warranty within the foregoing thirty (30) day period. Customer’s sole and exclusive remedy, and Company’s sole and exclusive liability, for a breach of the foregoing warranty will be for Company, in its sole discretion, to repair or replacement of the relevant Product (subject to the provisions of Section 2 for RMAs) or terminate the relevant Order and issue a refund for the price paid for the affected Product. Company shall not be responsible for any breach of the foregoing warranty resulting from Customer’s abuse or misuse of the Product or failure to use the Product as described in this Agreement, including failure to use the Product in accordance with its operational requirements.
   • Service Warranties. Company warrants that (i) Company shall provide the Services in a professional, workmanlike manner consistent with this Agreement, and (ii) for thirty (30) days after date of delivery, the Services will materially conform to their descriptions on the applicable SOW. Customer must notify Company of any breach of this warranty within thirty (30) days of delivery. Customer’s sole and exclusive remedy, and Company’s sole and exclusive liability, for a breach of the foregoing warranty will be for Company, in its sole discretion, to use reasonable efforts to reperform the Services or terminate the relevant SOW and issue a refund for the portion of price paid for the non-conforming Services.
   • Disclaimers. EXCEPT FOR THE LIMITED WARRANTIES IN SECTIONS 1 AND 8.2 OR ANY EXPRESS WARRANTIES PROVIDED IN TERMS AND CONDITIONS ACCOMPANYING A PRODUCT, THE PRODUCTS ARE PROVIDED “AS IS,” WITH ALL FAULTS, AND WITHOUT WARRANTIES OF ANY KIND. EXCEPT FOR THE LIMITED WARRANTIES IN SECTIONS 8.1 AND 8.2 OR ANY EXPRESS WARRANTIES PROVIDED IN TERMS AND CONDITIONS ACCOMPANYING A PRODUCT, COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUIET ENJOYMENT, QUALITY OF INFORMATION, TITLE/NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.   COMPANY DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE PRODUCTS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION, MARKETING OR PROMOTIONAL MATERIALS, OR ADVICE GIVEN BY COMPANY OR COMPANY’S AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE EXPRESS WARRANTIES PROVIDED HEREIN.

THE PRODUCTS MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. CUSTOMER ACKNOWLEDGES AND AGREES THAT COMPANY AND ITS VENDORS AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE CUSTOMER DATA, WEB‑SITES, COMPUTERS, OR NETWORKS. COMPANY WILL NOT BE RESPONSIBLE FOR THOSE ACTIVITIES.

9. • Company Indemnity. Company will defend and indemnify Customer and hold it harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees) arising from a claim by a third party that Customer’s authorized use of the Products infringes that third party’s United States patent, copyright, or trade secret rights. The foregoing indemnification obligation of Company is contingent upon Customer promptly notifying Company in writing of such claim, permitting Company sole authority to control the defense or settlement of such claim and providing Company reasonable assistance (at Company’s sole expense) in connection therewith. If a claim of infringement under this Section occurs, or if Company determines a claim is likely to occur, Company will have the right, in its sole discretion, to either (i) procure for Customer the right or license to continue to use the Products free of the infringement claim, or (ii) modify the Products to make them non-infringing, without loss of material functionality. If neither of these remedies is reasonably available to Company, Company may, in its sole discretion, immediately terminate this Agreement and related Order(s) and, upon return of the infringing Products from Customer, refund the fees paid for such Products, prorated over twenty-four (24) months from initial delivery of the Products to Customer. Notwithstanding the foregoing, Company will have no obligation with respect to any claim of infringement that is based upon or arises out of (i) the use or combination of the Products with any hardware, software, products, data, or other materials not provided by Company, (ii) modification or alteration of the Products by anyone other than Company, (iii) use of the Products in excess of the rights granted in this Agreement, or (iv) any specifications or other intellectual property provided by Customer (collectively, the “Excluded Claims”). The provisions of this Section state the sole and exclusive obligations and liability of Company and its licensors and suppliers for any claim of intellectual property infringement arising out of or relating to the Products or this Agreement, and are in lieu of any implied warranties of non-infringement, all of which are expressly disclaimed.
   • Customer Indemnity. Customer will defend and indemnify Company and hold it harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees) incurred by Company as a result of any claim by a third party arising from (i) Customer’s use of the Products in breach of this Agreement or (ii) the Excluded Claims. The foregoing indemnification obligation of Customer is contingent upon Company promptly notifying Customer in writing of such claim, permitting Customer sole authority to control the defense or settlement of such claim and providing Customer reasonable assistance (at Customer’s sole expense) in connection therewith.
10. Limitations of Liability.
    • NEITHER COMPANY NOR ITS VENDORS AND LICENSORS SHALL HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, SALES, BUSINESS, DATA, OR OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE DAMAGES, OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, THE PRODUCTS, AND ANY SERVICES RENDERED HEREUNDER.  THE TOTAL LIABILITY OF COMPANY AND ITS VENDORS AND LICENSORS TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, THE PRODUCTS, AND ANY SERVICES RENDERED HEREUNDER FOR ANY AND ALL CLAIMS OR TYPES OF DAMAGES SHALL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE HEREUNDER BY CUSTOMER FOR THE PRODUCT OR SERVICE AS TO WHICH THE LIABILITY RELATES, BUT IN NO EVENT MORE THAN AGGREGATE FEES PAID BY CUSTOMER IN THE THIRTY (30) DAYS PRIOR TO THE FIRST EVENT GIVING RISE TO LIABILITY.  The allocations of liability in this Section represent the agreed, bargained-for understanding of the parties and Company’s compensation hereunder reflects such allocations.  The limitation of liability and types of damages stated in this Agreement are intended by the parties to apply regardless of the form of lawsuit or claim a party may bring, whether in tort, contract or otherwise, and regardless of whether any limited remedy provided for in this Agreement fails of its essential purpose.
    • No action arising out of this Agreement may be brought by either party more than two (2) years after such cause of action accrues, except that an action for nonpayment may be brought within two (2) years of the date of the last payment.
11. Term and Termination.
    • This Agreement shall be effective as of the Effective Date, and shall remain in full force and effect until terminated in accordance with the terms of this Section 11.
    • • Subject to the terms of Section 3.1 below, either party may terminate this Agreement for any reason (with or without cause) at any time by giving the other party at least thirty (30) days’ prior written notice, provided that the party seeking termination is not in default under this Agreement.
      • If Company believes in good faith that Customer’s ability to make payments may be impaired, or if Customer fails to pay any invoice when due and does not make such payment within ten (10) days after receipt of notice from Company of such failure, Company may, in its sole discretion, either: (i) suspend delivery or performance of any SOW or Order, or any remaining balance thereof, until such payment is made; or (ii) terminate any SOW or Order, or any remaining balance thereof. In either event, Customer shall remain liable to pay for any Products already shipped, any Services already performed, and all non-standard Products (as designated by Company) ordered by Customer.
      • Either party may terminate an SOW or an Order upon a material breach of the SOW or Order by the other, if the breaching party does not cure the breach within thirty (30) days after receipt of written notice from the other party specifying the breach.
    • Effects of Termination.
      • All SOWs and Orders existing at the time of termination of this Agreement shall remain in effect and shall be performed in accordance with and subject to the terms and conditions of this Agreement (all of which shall survive with respect to such SOWs and Orders), except for any SOWs or Orders terminated under Section 2.3 above.
      • In the event of any termination of an SOW or Order, Customer shall pay for all work in process (including charges for labor and materials) and all Products ordered as of the effective date of termination the particular SOW or Order, as applicable. In addition, if an SOW specifies a term for which Company shall provide Services to Customer (e.g., 36 months), and that SOW is terminated by Company for cause (including nonpayment) or by Customer without cause, then all future, recurring Service fees associated with the remaining term of such SOW shall become immediately due and payable, and shall be paid by Customer to Company upon the effective date of such termination.
      • The exercise of the right to terminate this Agreement and any SOW or Order shall be in addition to any other right and remedy provided in this Agreement or existing at law or equity that is not otherwise excluded or limited under this Agreement.

12. Miscellaneous Provisions.
    • S. Governmental Rights. The software Products are commercial computer software as described in DFARS 252.227-7014(a)(1) and FAR 2.101. If acquired by or on behalf of any the Department of Defense (“DOD”) or any component thereof, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in DFARS 227.7202-3, Rights in Commercial Computer Software or Commercial Computer Software Documentation. If acquired by or on behalf of any civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in FAR 12.212, Computer Software.
    • Non-Solicitation. Customer agrees that the personnel of Company are critical to Company. Therefore, Customer agrees not to solicit, make offers of employment, or hire in any capacity, either directly or indirectly, or enter into any consulting relationships or agreements with, any Company personnel associated with this Agreement during the term of this Agreement and for a period of one (1) year thereafter. If Customer violates this prohibition, Customer shall immediately pay to Company an amount equal to the annual compensation of the Company personnel solicited or hired.
    • Independent Contractor. Company, its personnel, agents, subcontractors and independent contractors are not employees or agents of Customer and are acting as independent contractors with respect to Customer. Neither party is, nor shall be considered to be, an agent, distributor, partner, joint venturer or representative of the other party for any purpose, and neither party shall have the authority to act on behalf of, or in the name of, or to bind the other party in any manner whatsoever.
    • Force Majeure. Neither party to this Agreement shall be liable for delays or failures in performance under this Agreement (other than the payment obligations or breach of confidentiality requirements) resulting from acts or events beyond the reasonable control of such party, including acts of war, terrorism, acts of God, earthquake, flood, embargo, riot, sabotage or dispute, governmental act or failure of the Internet, power failure, energy interruption or shortages, other utility interruption, telecommunications interruption provided that the delayed party: (i) gives the other party prompt notice of such cause; and (ii) uses its reasonable commercial efforts to promptly correct such failure or delay in performance.
    • Entire Agreement; Construction; Modifications. This Agreement, including any and all SOWs and Orders, constitutes the entire understanding between the parties related to this Agreement which understanding supersedes and merges all prior understandings and all other proposals, letters, agreements, oral or written. The parties further agree that there are no other inducements, warranties, representations or agreements regarding the matters herein between the parties except as expressly set in this Agreement. In the event of any conflict between the body of this Agreement and any SOW, sales quote, or Order, the body of this Agreement shall control. As used herein, the term “including” shall mean “including, without limitation”; the term “includes” as used herein shall mean “includes, without limitation”; and terms appearing in the singular shall include the plural and terms appearing in the plural shall include the singular. This Agreement may not be modified, amended or altered in any manner except by a written agreement signed by both parties, and any attempt at oral modification shall be void and of no effect.
    • Purchase Orders. COMPANY SPECIFICALLY OBJECTS TO ANY ADDITIONAL TERMS BEING ADDED THROUGH A PURCHASE ORDER OR SIMILAR DOCUMENT. IF A PURCHASE ORDER IS REQUIRED BY CUSTOMER, THE PARTIES AGREE THAT ANY ADDITIONAL TERMS CONTAINED THEREIN SHALL NOT BECOME PART OF THE AGREEMENT BETWEEN THE PARTIES AND SPECIFICALLY THAT THE TERMS OF THIS AGREEMENT SHALL SUPERSEDE ANY AND ALL TERMS IN ANY PURCHASE ORDER.
    • Assignment. Customer may not assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of Company. Any attempted assignment or delegation without such consent will be void and Company may immediately terminate this Agreement for cause. Except as provided above, this Agreement shall apply to, inure to the benefit of, and be binding upon the parties hereto and their successors and assigns.
    • No Waiver. The waiver or failure of either party to exercise any right in any respect provided for herein shall not be deemed to be a waiver of any further right hereunder.
    • Governing Law; Severability. This Agreement shall be governed by and construed in accordance with Swiss law without regard to choice of law principles. Any dispute, controversy or claim arising out of or relating to this Agreement or the existence, validity, interpretation, breach or termination hereof, shall be finally adjudicated and resolved by compulsory arbitration in accordance with the International Chamber of Commerce Rules and Procedures (“ICC”). The arbitration proceeding shall take place in Zurich, Switzerland. Notwithstanding the foregoing, Company shall have the right to seek injunctive or pre-judgment relief in any court of competent jurisdiction to prevent or enjoin the misappropriation, misuse, infringement or unauthorized disclosure of Company’s Confidential Information or intellectual property rights. No Federal Acquisition Regulations shall be construed to apply to Company without Company’s written agreement thereto. The United Nations Convention for the International Sale of Goods shall not apply to this Agreement. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement will remain in full force and effect.  
    • Attorneys’ Fees. The prevailing party will be entitled to recover, in addition to any other remedy, reimbursement for reasonable attorneys’ fees, court costs, costs of investigation, expert fees and other related expenses incurred in connection with any enforcement of rights under this Agreement in law or in equity, including an action for declaratory relief.
    • Survivability. All provisions of this Agreement relating to confidentiality, non-disclosure, intellectual property, disclaimers, limitation of liability, indemnification, payment, and no hiring, and any other provisions which must survive in order to give effect to their meaning, shall survive the termination of this Agreement.
    • Notices. Any notice provided pursuant to this Agreement, if specified to be in writing, shall be in writing and shall be deemed given: (i) if by facsimile, hand delivery or by delivery service, upon receipt thereof; or (ii) if mailed, three days after deposit in the U.S. mail, postage prepaid. All notices shall be addressed to the parties at the addresses specified below or at such other addresses as either party may in the future specify in writing to the other.
    • Headings; Counterparts. The headings contained in this Agreement are for purposes of convenience only and shall not affect the meaning or interpretation of this Agreement. This Agreement may be executed in two or more original or facsimile counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument.