HONEYWELL CYBER INSIGHTS/SCADAFENCE END USER LICENSE AGREEMENT
Eula
IMPORTANT NOTICE, PLEASE READ CAREFULLY. This End User License Agreement (“EULA” or “Agreement”) is a legal agreement between the business entity using the Solution (“User”) and Honeywell International Inc. (“Honeywell”) (collectively, the “Parties” and each a “Party”), which sets forth the rights and obligations governing the User’s use of the Solution, including, without limitation, all software (including all updates thereto) included in the Solution, all services provided by Honeywell or its Affiliates in connection therewith, and any hardware or equipment provided with the Solution or by Honeywell or its Affiliates. For purposes of this Agreement, “Affiliates” means any entity that Honeywell owns (directly or indirectly), controls, or is otherwise under common control and ownership with.
By purchaing a license to or otherwise using the cyber insights/scadafence solution or using the solution, services and/or documentation related thereto pursuant to a quotation or order form (as provided below), user represents: (1) that user or its authorized representatives have read this Eula and (2) user or its applidable authorized representatives have the authority to agree to the terms of this eula on behalf of user. If the foregoing is not acceptable, user does not have authority to enter into this EULA on behalf of User or does not agree to its terms, use the solution, services, or documentation related thereto.
1. Grant of License. Honeywell International Inc. (“Licensor” or “Honeywell”) provides a solution designed to assist a User in improving the User’s security for its OT (Operational Technologies) and computer networks from cybersecurity threats (the “Solution”) in accordance with the terms of this Agreement and any separate quotation, order form, or statement of work that references this Agreement (a “Quote” or “Quotation” or “Order Form”). Subject to the terms and conditions of this Agreement and the applicable Order Form pursuant to which such Solution licenses were purchased, including, all provisions regarding payment, Licensor grants to User a non-exclusive, non-transferable license solely during the term User’s license or subscription term to use the Solution governed by this Agreement (all licenses are term licenses and not perpetual licenses) to install the licensed number of copies of the Solution at User’s own premise (the “Site”), and use the functionality provided by such Solution solely for User’s own internal requirements. Separate terms and conditions regarding the use of the Solution may be set forth in the Order Form or Quotation (agreed to by User directly with Licensor, a Licensor Affiliate, or a Licensor authorized reseller), which may include, among other things, the term of User’s license to the Solution, restrictions on the number of assets or units within scope of the Solution, a limitation on the Sites where the Solution may be installed and used, the number of servers on which the Solution is authorized to be installed and used, and other use limitations which may be used with the Solution. User shall comply with all terms and conditions of the applicable Quotation or Order Form and this Agreement and shall not exceed the scope of any use, asset limitations, unit limitations, Site limitations, or other restrictions or limitations set forth in an applicable Quotation or Order Form. The Solution shall be provided in object code form only. User has no rights in respect of any source code of the Solution. User may not change the Site for the Solution once installed without Licensor’s prior written consent. User acknowledges and agrees that the Solution may contain a time-sensitive disablement feature ("Deactivation Device") that will automatically deactivate the Solution upon the termination of Solution license term. User agrees not to tamper with, disable, or attempt to bypass the Deactivation Device feature. User also understands that the Deactivation Device feature is integral to the enforcement of the applicable term of the license for the Solution and agree that Licensor shall not be liable for any loss or damage that may arise from the disablement of the Solution as a result of the Deactivation Device feature.
2. Restrictions. Except as expressly permitted hereunder, User may not, and User shall not allow others to, (a) copy, modify, or create derivative works of the Solution or part thereof, (b) distribute, sell or transfer the Solution or part thereof or sublicense User’s right to use the Solution hereunder, (c) reverse-engineer, disassemble, or attempt to derive the source code of the Solution, (d) attempt to disable or circumvent any security or access control mechanism of the Solution, (e) remove any trademarks or notices (including copyright notices) from the Solution, or (f) disclose results of any program benchmarking tests without the Licensor’s prior written consent. User may not use the Solution in violation of any applicable law or regulation. User may not offer to third parties a service of User’s own that uses the functionality provided by the Solution. To the extent any of the restrictions set forth in this Section are not enforceable under applicable law, User shall inform Licensor in writing in each instance prior to engaging in the activities set forth above. User is not licensed to use any modules for the Solution that may be included in the Solution but not set forth in the Solution licenses purchased by User according to the Quotation.
3. Ownership. User has no ownership rights in the Solution. The Solution is licensed, not sold. Rather, User shall have only a license to use the Solution only during the subscription term for the Solution license purchased by User. Ownership of the Solution and all intellectual property rights therein shall remain at all times with Licensor or its licensors. No rights are granted hereunder by estoppel or by implication. All rights not granted to User herein are reserved to Licensor or its licensors. Any references to the sale or transfer of the Solution herein or in any other communication between Licensor and User shall mean only the license of the Solution pursuant to the terms and conditions of this Agreement. User may voluntarily provide comments, suggestions, enhancement or modification requests, recommendations, proposals, ideas, and other feedback relating to Licensor or otherwise (collectively, “Feedback”). User hereby assigns to Licensor and its Affiliates (and shall cause its employees, contractors, and agents to assign to Licensor and its Affiliates) all right, title, and interest in, and Licensor is free to use, without any attribution or compensation to any party, any Feedback and intellectual property rights contained in the Feedback, for any purpose whatsoever, whether or not the Feedback was provided at Licensor’s request. Licensor is not required to hold any Feedback in confidence, pay compensation for any Feedback, implement or use any Feedback, or respond to any Feedback. User grants Licensor and its Affiliates and right and license to use all User data and information to which it is provided access to provide any and all services related to the Solution, including, without limitation, the right to transfer or export such User data in connection therewith, and to use any User data to improve and develop the Solution.
4. Payment. In consideration of the licenses granted hereunder, User shall make payment to Licensor (or if applicable its authorized reseller) of all amounts set forth in the Quotation. Amounts due hereunder are exclusive of VAT and applicable taxes. User shall make payments hereunder free and clear, and without deduction or withholding, except as required by law. If User are required by law to make any deduction or withholding, User shall make payment of such additional amounts as is necessary such that Licensor shall receive the amounts due hereunder without any such deduction or withholding. Late payments shall bear interest at the rate of 18% per annum or, if lower, the maximum amounts permitted under applicable law.
5. Data and Privacy. The Solution monitors applicable network and communication traffic, including the parties to any communication, the applicable protocol and the duration of the communication (“Network Data”). Licensor may retain Network Data in order to allow for auditing of cybersecurity events. Network Data is User’s confidential information. Licensor shall use such Network Data to provide services through the Solution, but shall otherwise not use or disclose Network Data except as set forth herein. Licensor does not intend that any Network Data contain personally identifiable information. If User believe that Network Data contains personally identifiable information, User shall obtain all necessary consents from User’s users to allow Licensor to use and store the Network Data as set forth herein. Licensor will fully cooperate with any law, law enforcement authorities or court order requiring the disclosure of Network Data. Licensor may use and disclose data as it reasonably believes necessary to investigate and protect the security of its software, servers and other equipment or as otherwise necessary to protect its legal rights. Licensor may disclose or transfer data and information in connection with a sale of all or part of its business, or in the event of an insolvency, bankruptcy, or receivership in which information is transferred to one or more third parties as one of its business assets. In the future, and only following reasonable prior notice to User, Licensor may compile data from its users (“Statistical Information”). Statistical Information is anonymized and does not, in and of itself, identify any client or individual end user. Statistical Information helps understand trends and customer needs so that new services can be considered and so the Solution and associated technology and services can be tailored to customer desires. Licensor may also share Statistical Information with its partners, pursuant to commercial terms that Licensor determines in its sole discretion.
6. Data Privacy.
a. “Applicable Data Privacy Laws” means applicable data protection, privacy, breach notification, or data security laws or regulations. “Data Controller” means a Party that alone or jointly with others, determines the purposes and means of the processing of Personal Data (as that term or similar variants may otherwise by defined in Applicable Data Privacy Laws). “Personal Data” means any information relating to an identified or identifiable natural person or as that term or similar variants may otherwise be defined in Applicable Data Privacy Laws. Personal Data includes (i) relationship data about individuals provided by one Party to the other to manage the relationship between the Parties, and (ii) personally identifiable usage data made available by the User to Licensor in relation to the use of the Solution for the purposes of providing, improving, or developing Licensor products and services.
b. Each Party will process the Personal Data of the other as an independent Data Controller in accordance with Applicable Data Privacy Laws. Each Party represents that it has all rights and authorizations to transfer Personal Data to the other Party (including providing notice).
c. To the extent required by Applicable Data Privacy Laws, each Party agrees to be bound by the terms of the Standard Contractual Clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 (including the provisions in Module 1) and the UK’s International Data Transfer Addendum to the EU Commission Standard Contractual Clauses made under s119A(i) of the UK’s Data Protection Act 2018 (“Controller SCCs”) in its capacity as “data exporter” or “data importer”, as applicable, and as those terms are defined therein. The Controller SCCs will be deemed to have been signed by each Party and are hereby incorporated by reference into the Agreement in their entirety as if set out in full as an annex to this Agreement. The Parties acknowledge that the information required to be provided in the appendices to the Controller SCCs is set out at https://www.honeywell.com/us/en/company/data-privacy. Each Party will implement appropriate technical and organizational measures to protect Personal Data against any security breaches. If there is a conflict between this Agreement and the Controller SCCs, the Controller SCCs will prevail. Where applicable law requires changes to the Controller SCCs, those changes will be deemed to have been made without further action from the parties.
d. If Licensor processes Personal Data on User’s behalf, Honeywell’s Data Processing Agreement (“DPA”) at https://www.honeywell.com/us/en/company/data-privacy shall apply.
7. Open Source. The Solution may include certain software made available under open source licenses (the “Open Source Software”). To the extent required by the applicable open source licenses, the terms and conditions of such licenses shall apply to the Open Source Software in lieu of the terms and conditions of this Agreement. Notwithstanding anything to the contrary in this Agreement, Licensor makes no warranties in respect of Open Source Software in excess of the warranties set forth in the applicable open source license itself, and accepts no liability in respect of Open Source Software in excess of the limitation of liability set forth in the applicable open source license. If any license requires Licensor to provide source code, Licensor shall make such source code available to User upon User’s written request according to the terms of the applicable open source license.
8. Licensee Warranties. User represents and warrants that (a) User has all rights necessary to enter into this Agreement and perform User’s obligations hereunder; (b) nothing contained in this Agreement or in the performance of this Agreement will place User in breach of any other contract or obligation; and (c) User shall at all times remain in full compliance with all applicable laws and regulations with regard to its performance under this Agreement. If User uses the Solution in connection with any third-party applications or software, User represents and warrants that use of the Solution in such manner will not breach any agreement between User and such third party.
9. Licensor Warranties; Disclaimer. Licensor represents and warrants that it will make reasonable efforts (i) to make the Solution operate in material compliance with applicable written specifications published by Licensor to User as the specifications for the Solution (excluding marketing materials, User correspondence and similar collateral, the “Documentation”) during the licensed term for User’s use of the Solution pursuant to this Agreement, and (ii) to provide all services provided to User by Licensor (including its contractors when providing services on behalf of Licensor) in a workmanlike manner. Nonetheless, all software contains bugs. In the event any Solution or related services fail to comply with the foregoing warranty and User provides Licensor written notice of such failure within 30 days of the date of such failure (or performance of services if applicable), Licensor shall, as its entire liability and User’s sole and exclusive remedy, repair or replace the Solution or re-perform the services (where applicable). As such, Except as set forth herein, the Solution and all services are provided on an “AS-IS, where-is” basis. The Licensor (and its licensors and commercial partners) expressly disclaims any warranties, representations, and conditions with respect to the Solution and services, express or implied, including that Licensor disclaims any statutory or implied warranties, including any warranties of merchantability, fitness for a particular purpose, title or non-infringement. licensor does not represent that the solution will be error free, that all errors can be corrected, or that it will comply with customer’s requirements. licensor does not represent or warrant that the solution complies with any laws applicable to User or User’s use of the solution.
The warranties specified in this Section will not be effective and Licensor will have no obligation or liability to User if: (a) the Solution is not used according to the applicable documentation and Licensed Use as provided in this Agreement; (b) the Solution is altered, modified or revised by or for User; (c) User’s computer hardware malfunctions or the electrical power or external electrical circuitry is defective; (d) User use the Solution with any computer hardware or software not approved by Licensor as compatible with solution in its user documentation; or (e) the warranty claim is unrelated to a warranted defect in the solution or cannot be reproduced by Licensor.
10. Limitation of Liability. In no event shall Licensor (or its licensors, its affiliates, or commercial suppliers) be liable to User or any other entity for indirect, special, incidental or consequential damages (including, but not limited to, loss of profits, loss of data or loss of use damages) as a result of the Solution, services, or equipment or the use thereof, even if Licensor has been advised of the possibility of such damages or losses. Licensor shall have no liability in respect of any changes to the alerts or notifications provided by the solution to the extent requested by licensor’s supplier’s, resellers or reseller’s customers or customers). The liability of Licensor (and its licensors or suppliers) for the Solution or any equipment or services provided by licensor or its affiliates related thereto or otherwise governed by this agreement shall not exceed amounts actually paid by User (or user’s reseller for the user license) to Licensor specifically for the use of the Solution, services or equipment that is the basis of the claim. in no event shall licensor be liable for any loss of or damage to User’s data or records. The limitations and exclusions set forth in this section shall apply to the maximum extent permitted by law to any damages or other liability however caused and regardless of the theory of liability. licensor shall have no liability of any kind for services, products or software provided by a licensor reseller.
11. Termination. This Agreement shall come into effect as of the day that User accept its terms and shall continue in effect for the subscription or license term for the Solution and related services set forth in the Quotation applicable to User’s purchase of the license to use the Solution or other governing agreement signed by both parties that expressly governs User’s license to use the Solution, unless earlier terminated according to the provisions hereof. This Agreement shall automatically terminate if User cease making payment as agreed between the parties, the term for User’s license to the Solution expires or is terminated as provided herein, or this Agreement is otherwise terminated as provided herein. Either party may terminate this Agreement upon the occurrence of a material breach or default as to any obligation hereunder by the other party and the failure of such breaching party to remedy such breach within thirty (30) days after receiving written notice thereof from the non-breaching party, any such termination becoming immediately effective upon the giving of written notice of termination. Upon the expiry or termination of this Agreement, User’s license to use the Solution shall immediately terminate, and User shall cease all use of the Solution and shall delete all copies of the Solution from User’s devices and shall make commercially reasonable efforts to cause User’s employees and independent contractors to delete all copies of the Solution from their devices. The rights and obligations of the parties as set forth in Sections 2 – 14 shall survive the termination or expiration of this Agreement for any reason.
12. Compliance; Sanctions; Export; Anti-Corruption.
a. User certifies it has read, understands, and agrees to abide by the provisions of the Honeywell Code of Business Conduct (the “Code of Conduct”), available at https://www.honeywell.com/who-Honeywell-are/integrity-and-compliance. User further acknowledges and agrees that it shall, at its sole cost and expense, comply with all applicable laws, rules, regulations, decrees, and other requirements relating to or affecting this Agreement, the Solution and services (including their sale, transfer, handling, storage, use, disposal, export, reexport, and transshipment), the activities to be performed by User, or the facilities and other assets used by User in performing its obligations under this Agreement, including filing all required reports relating to such performance (including tax returns), paying all filing fees and federal, state and local taxes applicable to its business as the same shall become due and paying all amounts required under the local, state and federal laws governing workers’ compensation, disability benefits, unemployment insurance, and other employee benefits. This obligation further includes, but is not limited to, User’s confirmation of and agreement with the representations and warranties set forth in the following subparagraphs. User will defend, indemnify and hold the Licensor and its Affiliates harmless from and against any claims arising out of User’s non-compliance with this Section and its subparagraphs.
b. Sanctions Compliance. User represents, warrants, that
i. It is not a “Sanctioned Person,” meaning any individual or entity: (i) named on a governmental denied party or restricted list, including: the Office of Foreign Assets Control (“OFAC”) list of Specially Designated Nationals and Blocked Persons (“SDN List”), the OFAC Sectoral Sanctions Identifications List (“SSI List”), and the sanctions lists under any other Sanctions Laws; (ii) organized under the laws of, ordinarily resident in, or physically located in a jurisdiction subject to comprehensive sanctions administered by OFAC (currently Cuba, Iran, North Korea, Syria, and the Crimea, so-called Donetsk People’s Republic, or so-called Luhansk People’s Republic regions of Ukraine/Russia) (“Sanctioned Jurisdictions”); and/or (iii) owned or controlled, directly or indirectly, 50% or more in the aggregate by one or more of any of the foregoing.
ii. Relating to this Agreement and the transactions contemplated hereby, User is in compliance with and will continue to comply with all economic Sanctions Laws administered by OFAC, other U.S. regulatory agencies, the European Union and its Member States, the United Kingdom, and the United Nations (“Sanctions Laws”). User will not involve any Sanctioned Persons in any capacity, directly or indirectly, in any part of this transaction and performance under this transaction. User will not take any action that would cause Licensor to be in violation of Sanctions Laws.
iii. User will not sell, export, re-export, divert, use, or otherwise transfer any Licensor products, technology, software, or proprietary information: (i) to or for any Sanctioned Persons or to or involving Sanctioned Jurisdictions; or (ii) for purposes prohibited by any Sanctions Laws. User will not source any components, technology, software, or data for utilization in Licensor products or services: (i) from any Sanctioned Persons or Sanctioned Jurisdictions or (ii) in contravention of any Sanctions Laws.
iv. User’s failure to comply with this provision will be deemed a material breach of this Agreement, and User will notify Licensor immediately if it violates, or reasonably believes that it will violate, any terms of this Section. User agrees that Licensor may take any and all actions required to ensure full compliance with all Sanctions Laws without Licensor incurring any liability.
c. Export and Import Compliance. User will not distribute, resell, export or re-export any Solution, Documentation, technical data, software, plans, or specifications dealing with an Solution (“Restricted Items”), or take any actions in relation to or in furtherance of this Agreement which are contrary to U.S. Department of State International Traffic in Arms Regulations (“ITAR”) or the U.S. Department of Commerce Export Administration Regulations (“EAR”) or any other applicable export control, import control, and economic sanction laws and regulations of any country or countries (collectively, “Export/Import Control Laws”). User acknowledges that Export/Import Control Laws may control not only the sale, resale, export and re-export of Products but also the transfer of other Restricted Items. User agrees that it will not sell, re-sell, export, re-export or otherwise transfer any of the Restricted Items in any form, either directly or indirectly, in violation of any Export/Import Control Laws. Further, User shall take no action that would cause Licensor to be in violation of any Export/Import Control Laws. User further acknowledges that U.S. Export/Import Control Laws (ITAR and EAR) include prohibitions against selling any product to U.S. embargoed countries (currently, Cuba, Iran, North Korea, Syria, and Sudan); prohibitions against sales of ITAR product to any country with which the U.S. maintains an arms embargo; prohibitions against sale of certain EAR-controlled product for China military end-use; and other restrictions. User will immediately notify Licensor and cease activities with regard to the transaction in question if it knows or has a reasonable suspicion that any Restricted Items may be redirected to other countries in violation of Export/Import Control Laws. Licensor will apply for United States Government export authorizations required for delivery of any goods, services or technical data under this Agreement. User will promptly provide all information required by Licensor to complete the authorization application. User will apply for all other necessary import, export or re-export approvals.
Licensor will not be liable to User for any failure to provide any Solution or other Restricted Item as a result of government actions that impact Licensor’s ability to perform, including:
i. The failure to provide or the cancellation of export or re-export licenses;
ii. Any subsequent interpretation of applicable import, transfer, export or re-export law or regulation after the date of any order or commitment that has a material adverse effect on Licensor’s performance; or
iii. Delays due to User’s failure to follow applicable import, export, transfer, or re-export laws and regulations.
If User designates the freight forwarder for export shipments from the United States, then User's freight forwarder will export on User's behalf and User will be responsible for any failure of User's freight forwarder to comply with all applicable export requirements. Licensor will provide User's designated freight forwarder with required commodity information.
d. Anti-Bribery, Anti-corruption Laws.
i. Honeywell International Inc. is subject to national and international laws prohibiting bribery and corruption. Because Honeywell International Inc. is a US company, its employees and Affiliates, as well as all consortium bidding partners and any third party acting on its behalf must comply with the US Foreign Corrupt Practices Act ("FCPA") and similar anticorruption laws applicable in the countries where Honeywell operates.
ii. User certifies that has read, understands, and agrees to abide by the provisions of, the Honeywell Code of Business Conduct, which is available at https://www.honeywell.com/who-we-are/integrity-and-compliance, and the Honeywell Anticorruption Policy, which is available at https://www.honeywell.com/content/dam/honeywellbt/en/documents/downloads/Anticorruption%20Policy%202066%20pdf.pdf.
iii. User agrees that in connection with its activities under this Agreement, neither User nor any agent, affiliate, employee, or other person acting on its behalf will offer, promise, giver or authorize the giving of anything of value, or offer, promise, make or authorize the making of any bribe, rebate, payoff, influence payment, kickback or other unlawful payment to any government official or political party in order to obtain or retain business, gain any unfair advantage or influence any decision.
iv. If Honeywell has reason to believe that the provisions of this agreement may have been violated, Honeywell and its authorized representatives will have the right to audit, examine and make copies of all records that relate to this Agreement including financial, legal, tax, accounting, operational, labor, and regulatory information. User will retain and preserve all records and materials including invoice records, pertaining to the Licensor products or services provided under this Agreement for a period of 3 (three) years after the termination of this Agreement or for the period prescribed by applicable law, whichever period is longer.]
v. In the event that Honeywell determines, in its sole discretion, that the User has engaged in conduct that violates the Honeywell Anticorruption Policy or applicable anti-corruption laws and regulations, Honeywell immediately shall have the right to terminate this Agreement.
vi. If User learns of any violations of the above anticorruption provisions in connection with the performance of this agreement, it will immediately advise (a) Honeywell's Chief Compliance Officer, (b) any member of Honeywell’s Integrity and Compliance Department or (c) the Honeywell Access Integrity Helpline (AccessIntegrityHelpline@honeywell.com). User agrees to cooperate fully with any Honeywell investigation, audit or request for information under this Section.
e. EU WEEE Directive. To the extent applicable, User agrees to comply with the European WEEE Directive 2012/19/EU or any other applicable law or regulation concerning the financing and organization of the disposal of waste electrical and electronic equipment, including responsibility for (i) all costs and liabilities associates with recycling products, (ii) the collection of products and their return, in accordance with all country specific applicable laws and regulations. User shall indemnify Honeywell for all such costs and upon reasonable evidence of Honeywell having to incur any such costs. User shall reimburse Honeywell within thirty (30) days of receipt of an invoice regarding the same.
f. Audit. User agrees to maintain accurate books and records to demonstrate compliance with the compliance requirements of this section. Honeywell, at its expense, may audit User to determine compliance with such provisions upon no less than thirty (30) days’ advance written notice, and User will provide reasonable assistance to Honeywell to complete such audit.
g. Non-Compliance. User’s failure to comply with this provision will be deemed a material breach of this Agreement, and User will notify Honeywell immediately if it violates, or reasonably believes that it will violate, any terms of this provision. User agrees that Honeywell may take any and all actions required to ensure full compliance with all applicable laws, including Sanctions Laws, Export/Import Control Laws and anti-corruption laws, without Honeywell incurring any liability.
13. Governing Law. All questions or disputes arising out of or relating to this EULA and its interpretation or enforcement (including its, breach, validity and termination), and the Parties’ relationship, rights, and liabilities relating hereto, whether arising in contract or otherwise (“Dispute”), shall be governed by the laws of the State of North Carolina without giving effect to any choice or conflict of law provisions or rule (whether the State of North Carolina or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of North Carolina. Licensor and User expressly agree to exclude from this EULA the Uniform Computer Information Transactions Act and the United Nations Convention on Contracts for the International Sale of Goods, 1980, and any successor thereto. The Parties agree that the federal and state courts of Mecklenburg County, North Carolina shall be the sole and exclusive venue for any Dispute, and the Parties hereby consent and submit to the jurisdiction for such venue. The Parties irrevocably and unconditionally waive any objection to venue of any Dispute in such court and irrevocably waive and agree not to plead or claim in any such court that any Dispute has been brought in an inconvenient forum. The Parties agree that any Dispute proceeding in state court shall be litigated in the North Carolina Business Court in Charlotte, North Carolina to the fullest extent permitted by law. The Parties shall seek to designate any Dispute to the North Carolina Business Court as a complex business case under § 7A-45.4 of the North Carolina General Statutes and/or an exceptional case under Rule 2.1 of the North Carolina General Rules of Practice, and they hereby provide their consent to and agree not to contest designation to such court. If designation to the North Carolina Business Court is denied or otherwise prohibited by law, the Parties agree that any Dispute shall be litigated in Mecklenburg County Superior Court or the U.S. District Court for the Western District of North Carolina. User will not bring a legal or equitable action more than one year after the cause of action arose unless a shorter period is provided by applicable law. EACH PARTY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY RELATED TO THIS EULA.
14. Miscellaneous. The rights and obligations of the parties to this Agreement shall not be governed by the United Nations Convention on the International Sale of Goods. This Agreement constitutes the entire agreement between the parties hereto. Any amendment or modification of this Agreement shall only be effective if it is in writing and signed by both parties hereto. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, such provision shall be interpreted as necessary to give maximum effect to its provisions as possible under applicable law and the remainder of this Agreement shall remain in effect. Licensor communicates with its users electronically and on-line and, as such, User consent to receive all communications and notices electronically from Licensor (including through the Solution) or to an email address that User have provided to Licensor. All such communications or notifications shall be considered as having been provided in writing. Licensor reserves the right to update or modify the Solution at any time, from time to time in its sole discretion, including without limitation to increase or change functionality of the Solution. Licensor may cease providing or maintaining the Solution at any time. This EULA and the rights granted herein are not assignable or transferrable by User. Licensor may assign or transfer this EULA or any rights in it with or without notice to User. Unenforceable provisions will be reformed to permit enforceability with maximum effect to the original intent. Waiver of a breach is not waiver of other or later breaches. The parties are independent contractors of the other. If required by Licensor’s written contract with such parties, certain of its licensors may be third party beneficiaries of this EULA. The controlling version of this EULA is this English language version regardless translation. The word “including” is exemplary meaning “including without limitation” or “including, but not limited to.” The words “shall,” “will,” and “must” are obligatory while “may” is permissive, giving a right, but not obligation. If any provision of this EULA is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this EULA will continue in full force and effect.
15. US Government Restricted Rights. The Solution is provided with "RESTRICTED RIGHTS." Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in applicable laws and regulations. Use of the Solution and related materials by the U.S. Government constitutes acknowledgment of Licensor’s proprietary rights in same. Solution licenses acquired by or for any unit or agency of the United States Government ("U.S. Government") is classified as "Commercial Computer Software," as that term is defined in the applicable provisions of the Federal Acquisition Regulation and supplements thereto, including the Department of Defense FAR Supplement. The terms and conditions of the Agreement pertain to the U.S. Government’s use and disclosure of the Solution, and supersede any conflicting terms or conditions, except to the extent that any term or condition is inconsistent with United States Federal law. If the U.S. Government requires any rights that are not conveyed under this Agreement, those rights will be separately negotiated and will be set forth in a separate written license or in a written addendum to this License.
16. Confidentiality. All non-public, confidential or proprietary information disclosed by a party to the other party in performance of this Agreement (“Confidential Information”) will be protected using the same degree of care, but no less than reasonable care, as the recipient uses to protect its own Confidential Information and will not, without the written consent of the disclosing party, be used or disclosed except for the purpose of, or as permitted by, this Agreement and only by the receiving party’s affiliates, employees and service providers who are bound by substantially similar obligations of confidentiality and have a need to know. Each party will be responsible for breaches of the confidentiality obligations by its affiliates, employees or service providers. Receiving party will keep Confidential Information confidential during the term of this Agreement and for 5 years from the expiration or termination of this Agreement. Except as explicitly set out in this Agreement, information will not be Confidential Information unless (a) marked “CONFIDENTIAL” or similar at disclosure; (b) disclosed orally or visually but identified as confidential at disclosure and designated as confidential in writing in 30 days of disclosure summarizing the Confidential Information sufficiently for identification, or (c) it should reasonably be understood to be confidential given the nature of the information as sensitive and non-public. User acknowledge and agree that the Solution and all information and materials related thereto and provided to User by Licensor or its resellers shall be considered the Licensor Confidential Information regardless of whether or not marked or identified as CONFIDENTIAL at the time of disclosure as provided above. Confidential Information excludes information that: (i) was already known to recipient without restriction; (ii) is publicly available through no fault of recipient; (iii) is rightfully received by recipient from a third-party without a duty of confidentiality; or (iv) is independently developed. A party may disclose Confidential Information when compelled to do so by law and if so, that party shall provide prior notice to the other party and allow that party reasonable opportunity to contest or limit disclosure, unless a court orders that the other party not be given notice. The Agreement and the internal operation and performance of the Solution, products, or services are our Confidential Information.