THIS DATAMEER END USER LICENSE AGREEMENT (THE “AGREEMENT”) GOVERNS ALL SOFTWARE PRODUCTS OR SERVICES PROVIDED BY DATAMEER, INC. (“DATAMEER”) INCLUDING ANY DATAMEER ANALYTICS SOLUTION PURCHASED THROUGH DATAMEER’S PARTNERS OR OTHER CHANNELS, AND ANY AND ALL UPDATES, UPGRADES, AND MODIFICATIONS THERETO. CONFIRMATION OF CUSTOMER’S ORDERS (“ORDER CONFIRMATION”) WILL BE DEEMED INCORPORATED INTO AND MADE PART OF THIS AGREEMENT. CUSTOMER WILL BE REQUIRED TO INDICATE ITS AGREEMENT TO THESE TERMS AND CONDITIONS IN ORDER TO DOWNLOAD THE SOFTWARE AND REGISTER WITH DATAMEER TO COMPLETE THE INSTALLATION PROCESS FOR THE DATAMEER PRODUCT. BY CLICKING A BOX INDICATING CUSTOMER’S ACCEPTANCE, DOWNLOADING OR INSTALLING THE DATAMEER PRODUCT, OR BY EXECUTING AN ORDER CONFIRMATION THAT REFERENCES THIS AGREEMENT, CUSTOMER IS CONSENTING TO BE BOUND BY THIS AGREEMENT. IF CUSTOMER AGREES TO THESE TERMS ON BEHALF OF A BUSINESS, IT REPRESENTS AND WARRANTS THAT IT HAS AUTHORITY TO BIND THAT BUSINESS TO THIS AGREEMENT, AND ITS AGREEMENT TO THESE TERMS WILL BE TREATED AS THE AGREEMENT OF THE BUSINESS. IN THAT EVENT, “CUSTOMER” REFERS HEREIN TO THAT BUSINESS. NOTWITHSTANDING THE FOREGOING, IF CUSTOMER HAS EXECUTED, OR SUBSEQUENTLY EXECUTES, A MASTER SOFTWARE LICENSE AND SERVICES AGREEMENT (“MASTER AGREEMENT”) WITH DATAMEER COVERING THE DATAMEER PRODUCT, THEN DURING THE PERIOD THAT SUCH MASTER AGREEMENT IS IN FULL FORCE AND EFFECT, THE TERMS AND CONDITIONS OF THE MASTER AGREEMENT WILL GOVERN CUSTOMER’S USE OF THE DATAMEER PRODUCT.
1. LICENSE GRANTS; RESTRICTIONS.
1.1 Datameer Product License Grant. Subject to the terms and conditions of this Agreement and payment of applicable fees, Datameer grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, internal-use license, during the subscription term stated in the Order Confirmation (“Subscription Term”) (or if obtained for evaluation only, during the Evaluation Period), to install, access and use the Datameer-provided software described in such Order Confirmation (each a “Datameer Product”) in accordance with the associated end user documentation (the “Documentation”), solely: (a) to store and analyze Customer’s business data and/or third party data; (b) to create plug-in modules that run with the Datameer Product; and (c) for the quantity of licenses and/or other metrics purchased by Customer, as specified in the applicable Order Confirmation (or if obtained for evaluation only, for the quantity (if any) set forth in the evaluation confirmation). Customer agrees to use the Datameer Product solely for its own internal business purposes and shall not provide them to any third party. Unless otherwise agreed in writing, the Datameer Product is deemed irrevocably accepted on delivery. Customer may purchase additional quantities of licenses at any time during the Subscription Term through a supplemental Order Confirmation.
1.2 Third-Party Components. Certain third party components provided in or with the Datameer Product (“Third Party Components”) are subject to various “open source” or “free software” licenses. Customer may view the list of relevant licenses and/or notices for the Third Party Components on Datameer’s website or in the Datameer Product documentation, as such list may be supplemented from time to time for any updates or upgrades to the Datameer Products that Datameer provides as maintenance. Customer’s use of the Third Party Components is subject to and governed by the Third Party Component license that accompanies the Third Party Component and is not subject to the terms and conditions of this Agreement, except that this Section 1.2 (Third-Party Components), Section 9.2 (Warranty Disclaimer), and Section 11 (Limitation of Liability) of this Agreement also govern Customer’s use of the Third Party Components. Nothing in this document limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable license for the Third Party Component. Customer agrees to comply with the terms and conditions contained in all such Third Party Component licenses.
1.3 License Restrictions. Customer acknowledges that the Datameer Product contains valuable trade secrets and other intellectual property of Datameer, and accordingly Customer shall not, directly or indirectly, or permit any Customer user to (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Datameer Product; (ii) modify, translate, or create derivative works based on the Datameer Product; (iii) rent, lease, distribute, sell, resell, assign, sublicense, or otherwise transfer its rights to use the Datameer Product; (iv) use the Datameer Product for timesharing or service bureau purposes or otherwise for the benefit of a third party; (v) remove any proprietary notices from the Datameer Product or any other Datameer materials furnished or made available hereunder; or (vi) use the Datameer Product for any other purpose other than as licensed under this Agreement, including using the Datameer Product in any way to create products or services similar to or competitive with the Datameer Product, benchmarking the performance of the Datameer Product, or analyzing the Datameer Product for any competitive or review purposes. Customer may make a reasonable number of copies of the Datameer Product required for its back-up and archival purposes.
1.4 Term/Subscription Licenses. For any Datameer Product licensed on a term or subscription basis, the initial term of the license begins on Delivery and continues for twelve (12) months, or the term specified in the applicable Order Confirmation, if different. “Delivery” occurs when the Datameer Product is first made available to Customer. Thereafter, and unless otherwise set forth in the applicable Order Confirmation, the license for the applicable Datameer Product will automatically continue at Datameer’s then-current fees for successive one (1) year renewal terms until the earlier of the date: (a) Customer gives Datameer a notice of termination of such license at least thirty (30) days prior to the end of the then-current term or (b) a party terminates this Agreement pursuant to Section 7 (Termination) below.
1.5 Free Trial. If Customer registers on Datameer’s website for a free trial, Datameer will make one or more Datameer products and/or services available to Customer on a trial basis free of charge until the end of the free trial period for which Customer registered to use the applicable Datameer Product(s) (“Evaluation Period”). To the extent that the Datameer Product is available to Customer during the Evaluation Period as a cloud-based software-as-a-service hosted solution (“SaaS Service”), Datameer will make the SaaS Service available to Customer during the Evaluation Period to allow its users to access and use the SaaS Service in accordance with the Documentation, solely for Customer’s evaluation purposes. In such case, Customer grants Datameer a worldwide, limited term license to host, copy, transmit and display any electronic data and information submitted by or for Customer (“Trial Customer Data”) to the SaaS Service or collected and processed by or for Customer while using or accessing the SaaS Service. ANY TRIAL CUSTOMER DATA ENTERED INTO THE DATAMEER PRODUCT, AND ANY CONFIGURATIONS MADE TO THE DATAMEER PRODUCT BY OR FOR CUSTOMER, DURING THE EVALUATION PERIOD WILL BE PERMANENTLY LOST UNLESS CUSTOMER EXPORTS SUCH DATA BEFORE THE END OF THE EVALUATION PERIOD. DURING THE EVALUATION PERIOD, THE DATAMEER PRODUCT(S), INCLUDING THE SAAS SERVICE ARE PROVIDED “AS-IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND AND MAY HAVE LIMITED FEATURES, FUNCTIONS, CAPACITY, OR OTHER LIMITATIONS AS DETERMINED BY DATAMEER. DURING SUCH EVALUATION PERIOD, SECTIONS 2, 9.1, AND 10.2 OF THIS AGREEMENT SHALL NOT APPLY.
1.6 Beta. From time to time, Datameer may make a product, service, or functionality available to try at Customer’s sole discretion at no additional charge, which is designated as beta, pilot, limited release, non-production, early access, evaluation, or by a similar description (“Beta Services”). Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms that will be presented to the Customer before access. Beta Services are not considered “Datameer Product” under this Agreement; however, all restrictions, reservations of rights, and Customer’s obligations concerning the Datameer Product, and use of any Third-Party Applications will apply equally to Customer’s use of Beta Services. Datameer may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Datameer will have no liability for any harm or damage arising out of or in connection with Beta Services. BETA SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. SECTIONS 2, 9.1 AND 10.2 OF THIS AGREEMENT SHALL NOT APPLY TO BETA SERVICES.
1.7 Non-Datameer Third Party Applications. The Datameer Product may contain features or functions that enable the integration or interoperation of the Datameer Product with third party applications, services or products, which are licensed by their respective providers to Customer (“Third Party Application”). To use such features or functions, however, Customer may be required to obtain access or license separately to such Third Party Application(s) from the respective providers. By requesting or allowing the Datameer Product to enable access or connect to such Third Party Application, Customer acknowledges that any acquisition by Customer of such Third Party Application and any exchange of data between Customer and such Third Party Application, is solely between Customer and the applicable Third Party Application provider. If Customer installs or enables Third Party Application for use with any Datameer Product, Customer acknowledges that Datameer is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Third Party Application. If the provider of the Third Party Application ceases to make the Third Party Application available for interoperation or integration with the corresponding Datameer Product features on reasonable terms, Datameer may cease providing those features without entitling Customer to any refund, credit, or other compensation. Datameer does not warrant or support Third Party Applications or other non-Datameer products or services.
2. DATAMEER PRODUCT MAINTENANCE AND SUPPORT.
If Customer has purchased maintenance and support services, Datameer will provide the level of support for the period specified in the Order Confirmation in accordance with Datameer’s then-current support and maintenance policy available at: https://www.datameer.com/maintenanceandsupport.
3. SECURITY & PRIVACY.
3.1 Security & Data Privacy. As Customer will install and use the Datameer Product on Customer’s premises and network environment, Customer acknowledges that the responsibility for security and privacy of Customer Data and Customer’s data storage repositories rests solely with Customer and not Datameer. Datameer does not have any access to any Customer Data that is used through the Datameer Product, and therefore, Datameer is not considered a processor of such data and does not have any obligations with respect to that data under Applicable Data Protection Laws (defined below). Datameer relies on Customer to exercise care and adhere to Customer’s own policies when granting Datameer’s support team access to such data for the provision of support services. For business to business data collected during the sales, registration, marketing and installation process and any Trial Customer Data that is stored, processed, and/or analyzed through the use of the SaaS Service during the Evaluation Period, Datameer will process and store such information in compliance with any applicable privacy and data protection laws, regulations, rules, directives and governmental requirements currently in effect relating to the privacy, confidentiality or security of such information, including, without limitation, the General Data Protection Regulation 2016/679 of the European Parliament and of the Council, and any implementation thereof in national law (“GDPR”) (collectively “Applicable Data Protection Law”).
3.2 Compliance with Privacy Laws. Each party represents, warrants, and agrees that it is in compliance with and will comply with all Applicable Data Protection Laws. To the extent that any personal data from the European Economic Area (“EEA”), the United Kingdom, and Switzerland is received by Datameer, the Standard Contractual Clauses will apply, as applicable. For the purposes of the Standard Contractual Clauses, Customer and its applicable affiliates are each the data exporter, and Customer’s acceptance of this Agreement, and/or execution of an Order Confirmation will be treated as its execution of the Standard Contractual Clauses and Appendices.
4.1 Datameer Ownership. All right, title and interest in the Datameer Product, Beta Services, and any other Datameer materials or services furnished or made available hereunder including without limitation any Datameer plug-ins, and all modifications and enhancements thereof, including all rights under copyright and patent and other intellectual property rights, belong to and are retained solely by Datameer or Datameer’ licensors and providers, as applicable.
4.2 Customer Ownership. The Customer plug-ins referenced in Section 1.1 and any electronic data and information stored, processed and/or analyzed through the use of the Datameer Product (“Customer Data”) shall be the sole and exclusive property of Customer.
4.3 Feedback. Customer grants Datameer a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Datameer Product any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or its users relating to the operation of the Datameer Product.
4.4 Service Data. Datameer may or may engage third party analytics providers to collect, analyze, and use the data and data elements (excluding Customer Data) collected by the Datameer Product or Datameer’s computer systems regarding configuration, environmental, usage and performance of the Service (“Service Data”) that may be used to generate log, statistics and reports regarding performance, availability, integrity and security of the Datameer Product. Datameer will be free (during and after the Subscription Term) to (i) use the Service Data to improve and enhance the Datameer Product and for other development, diagnostic and corrective purposes in connection with the Datameer Product and other Datameer offerings, and (ii) disclose such Product Data solely in aggregate or other de-identified forms in connection with its internal business operation purposes.
5. CUSTOMER OBLIGATIONS.
Customer is solely responsible for its actions and the actions of its employees and other personnel while using or accessing the Datameer Product. Customer assumes all risk arising out of its use of the Datameer Product. Customer acknowledges and agrees that the Datameer Product may disrupt, corrupt or damage Customer’s systems, servers and/or equipment if not used properly and in accordance with all Documentation. Datameer is not liable for or responsible to remediate any issues found on Customer’s network or elsewhere and Customer is solely responsible for resolving such issues. Customer agrees: (a) to abide by all local, state, national, and international laws and regulations applicable to Customer’s use of the Datameer Product; (b) not to upload or distribute in any way content that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Datameer Product or another’s computer or mobile device; and (c) not to use the Datameer Product for illegal, fraudulent, unethical or inappropriate purposes.
6. FEES AND PAYMENT.
6.1 Fees. Customer will pay all amounts set forth in each Order Confirmation. Except as otherwise provided herein or in an applicable Order Confirmation, all fees are quoted in U.S. dollars and are non-refundable and non-cancellable.
6.2 Invoicing and Payment. All fees will be due in accordance with the applicable Order Confirmation or, if not specified therein, within thirty (30) days from the date of invoice. Any payment not received from Customer by the due date may accrue, at Datameer’s discretion, late charges at the lower of one and one-half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, from the date due until paid. If Customer requires that a purchase order (“PO”) to be issued before making payment under an applicable Order Confirmation, Customer must provide to Datameer such valid PO conforming to the applicable Order Confirmation in time for Customer to meet its payment obligations. The terms and conditions of any PO (or any other unilateral Customer document not agreed in writing by authorized representatives of both parties) will have no effect on the rights or obligations of the parties, regardless of any failure to object to such terms and conditions. Customer agrees to provide Datameer accurate billing and other contact information for each Order Confirmation at all times during the Subscription Term, including the name of Customer’s applicable legal entity and the street address, e-mail address, name and telephone number of an authorized billing contact. Customer will update this information within thirty (30) days after any changes, via email to Datameer’s Finance Team at email@example.com
6.3 Taxes. Datameer’s fees do not include taxes, levies, or duties imposed by taxing authorities (“Taxes”). Customer is responsible for paying all Taxes associated with its purchases under this Agreement other than taxes based on income, property, or employees of Datameer. If Datameer has the legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount will be invoiced to and paid by Customer unless Customer provides Datameer a valid tax exemption certificate authorized by the appropriate taxing authority.
7.1 Termination for Cause. Either party may terminate this Agreement or any Order Confirmation (s) upon thirty (30) days written notice to the other party in the event of a material breach of this Agreement (or the Order Confirmation(s)) if such breach is not cured by the other party within such thirty (30) day period; provided, however, that any unauthorized disclosure of Datameer Confidential Information or any willful unauthorized use, copying, disclosure, distribution or sublicensing of the Datameer Product or documentation or any related methods, algorithms, techniques, or processes will be deemed a material breach of this Agreement that cannot be cured and termination shall be immediate. Unless this Agreement is terminated in its entirety, any Order Confirmation not terminated will remain in effect.
7.2 Obligations of Customer upon Expiration or Termination. Upon the expiration of the Subscription Term or earlier termination of the Agreement, Customer must immediately terminate and cease all access to the Datameer Product and Customer must return or destroy, at Datameer’s election, all copies of the Datameer Product and any documentation in its possession.
7.3 Effect of Termination. Upon the expiration or termination of this Agreement or the applicable Order Confirmation: (a) all applicable licenses and/or services will immediately terminate; and (b) Customer must immediately: (i) cease all access to the applicable Datameer Product, and (ii) return or destroy, at Datameer’s election, all copies of the applicable Datameer Product and any applicable Documentation in Customer’s or a User’s possession; and (c) Sections 1.3 (License Restrictions), 3 (Security and Privacy), 4 (Ownership), 5 (Customer Obligations), 6 (Fees and Payments) (regarding unpaid amounts specified in an Order Confirmation), 7 (Termination), 8 (Confidentiality), 9.2 (Disclaimer), 10 (Indemnification), 11 (Limitation of Liability) and 12 (General) will survive.
8.1 Obligations. Each party agrees to maintain in confidence any non-public information of the other party, whether written or otherwise, disclosed by the other party in the course of performance of this Agreement that a party knows or reasonably should know is considered confidential by the disclosing party (“Confidential Information”). The parties hereby agree that Confidential Information includes, without limitation, the terms and conditions of this Agreement, and the sequence and structure of the Datameer Product. The receiving party shall not disclose, use, transmit, inform or make available to any entity, person or body any of the Confidential Information, except as a necessary part of performing its obligations hereunder, and shall take all such actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information and the parties’ respective rights therein, at all times exercising at least a reasonable level of care. Each party agrees to restrict access to the Confidential Information of the other party to those employees or agents who require access in order to perform hereunder, and, except as otherwise provided, neither party shall make Confidential Information available to any other person or entity without the prior written consent of the other party.
8.2 Exclusions; Destruction or Return of Information. Confidential Information shall not include any information that is (i) already known to the receiving party at the time of the disclosure; (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving party; (iii) subsequently disclosed to the receiving party on a non-confidential basis by a third party not having a confidential relationship with the other party hereto that rightfully acquired such information; or (iv) communicated to a third party by the receiving party with the express written consent of the other party hereto. A disclosure of Confidential Information that is legally compelled to be disclosed pursuant to a subpoena, or other judicial or governmental process shall not be considered a breach of this Agreement; provided the receiving party provides prompt notice of any such subpoena or the like so that the disclosing party will have the opportunity to obtain a protective order or otherwise oppose the disclosure. Upon expiration or termination of this Agreement for any reason, each party shall promptly return to the other party, or destroy, as the parties agree, all copies of the other party’s Confidential Information.
8.3 ID and Password. User IDs are granted to individual, named persons and may not be shared – i.e., a single login may not be shared by multiple people. Customer may not disclose or use the user ID and password provided by Datameer for the purpose of receiving delivery of the Datameer Product for any other purpose and shall notify Datameer immediately of any unauthorized use or disclosure.
9. WARRANTY AND DISCLAIMER.
9.1 Representations. Datameer represents and warrants that the initial Datameer Product provided hereunder, as made available to Customer and when used as permitted hereunder, will function substantially in accordance with the Documentation in all material respects for sixty (60) days following Delivery. Datameer’s sole liability and Customer’s sole remedy for a breach of this warranty will be for Datameer to promptly repair or replace, at Datameer’s option, any Datameer Product that fails to conform to such warranty or, if Datameer is unable to repair or replace the nonconforming product within a commercially reasonable period, Datameer will accept return of the Datameer Product and notwithstanding any other provision of this Agreement, terminate the license for the Datameer Product and refund to Customer a pro-rata portion of the license fee paid for the affected Datameer Product, based on the portion of the then-current license term remaining. This warranty will not apply to: (i) Datameer Product that has been damaged as a result of negligence or misuse; or (ii) Datameer Product that has been modified by Customer or a user; if the nonconformity relates to or results from such modification. FOR CLARIFICATION, THE WARRANTY IN SECTION 9.1 DOES NOT APPLY DURING ANY EVALUATION PERIOD.
9.2 Disclaimer. EXCEPT AS PROVIDED IN SECTION 9.1, DATAMEER LICENSES THE DATAMEER PRODUCT AND PROVIDES SUPPORT SERVICES TO CUSTOMER ON AN “AS IS” BASIS. THIS WARRANTY IN SECTION 9.1 IS PROVIDED IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS AND DATAMEER MAKES NO OTHER WARRANTY, CONDITION OR REPRESENTATION OF ANY KIND WHETHER EXPRESS OR IMPLIED. DATAMEER EXPRESSLY DISCLAIMS THE WARRANTY OF NON-INFRINGEMENT AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. DATAMEER DOES NOT REPRESENT OR WARRANT THAT OPERATIONS OF THE DATAMEER PRODUCT OR THE NETWORK AND THIRD PARTY SERVICES TO WHICH THE DATAMEER PRODUCT IS CONNECTED WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT PROGRAMMING ERRORS IN THE DATAMEER PRODUCT CAN BE FOUND IN ORDER TO BE CORRECTED.
10.1 Indemnification by Customer. Customer shall indemnify, defend and hold harmless Datameer against any third party claim or suit based on a claim: (i) of any breach of this Agreement by Customer, its affiliates, employees agents, successors and assigns; or (ii) relating to or based on the activities or transactions conducted by, or data processed, analyzed or stored by Customer, its employees, contractors and agents, while using or which used the Datameer Product; and Customer shall pay any final judgment entered against Datameer in any such proceeding or agreed to in settlement. Datameer will promptly notify Customer in writing of such claim or suit or give all information and assistance reasonably requested by Customer or Customer’s designee. Customer may not settle any claim or suit by requiring Datameer to pay or incur any financial or other type of liability, without Datameer’s prior written consent.
10.2 Indemnification by Datameer. Datameer shall indemnify, defend, or at its option settle, any third party claim or suit against Customer based on a claim that the Datameer Product infringes any copyright, trade secret or United States patent issued as of the activation date or Subscription license start ate, set forth in the applicable Order Confirmation. Datameer shall pay any final judgment entered against Customer in any such proceeding or agreed to in settlement or compromise entered into by Datameer or with Datameer’s prior consent. Customer will promptly notify Datameer in writing of such claim or suit and give all information and assistance reasonably requested by Datameer, at Datameer’s expense. The foregoing indemnity shall not apply to any infringement claims arising out of or related to (i) any modification of the Datameer Product where the infringement claim would not have arisen but for such modification; (ii) any combination of the Datameer Product with any hardware or software not provided by Datameer where the infringement claim would not have arisen but for such combination; or (iii) use of a version of the Datameer Product that has been superseded by a more current version if the infringement claim could have been avoided by the use of such current version. This Section 10.2 sets forth Datameer’s sole and exclusive liability and Customer’s sole and exclusive remedy for any infringement of intellectual property rights.
11. LIMITATION OF LIABILITY.
11.1 LIMITATION ON DIRECT DAMAGES. EXCEPT FOR A BREACH OF SECTION 1.3 (“LICENSE RESTRICTIONS”) OR SECTION 8 (“CONFIDENTIALITY”), AND EXCEPT FOR INDEMNITY OBLIGATIONS UNDER SECTION 10 (“INDEMNIFICATION”) (COLLECTIVELY, THE “EXCLUDED CLAIMS”), IN NO EVENT WILL EITHER PARTY (OR DATAMEER’S LICENSORS AND/OR SUPPLIERS), BE LIABLE TO THE OTHER PARTY (OR ANY THIRD PARTY CLAIMING THROUGH THE OTHER PARTY), IN THE AGGREGATE, FOR DAMAGES, IF ANY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, IN EXCESS OF THE TOTAL AMOUNT OF ANY FEES, COSTS OR EXPENSES PAID OR PAYABLE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM (OR IF NO FEES HAVE BEEN PAID, THEN A TOTAL AMOUNT OF $50.00), WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT FORESEEABLE.
11.2 WAIVER OF CONSEQUENTIAL DAMAGES. EXCEPT FOR THE EXCLUDED CLAIMS, IN NO EVENT WILL EITHER PARTY (OR DATAMEER’S LICENSORS AND/OR SUPPLIERS) BE LIABLE TO THE OTHER PARTY (OR ANY THIRD PARTY CLAIMING THROUGH THE OTHER PARTY) FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR SIMILAR DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, LOST OR INACCURATE DATA, LOST PROFITS, LOST OR INTERRUPTED USE, OR SIMILAR ECONOMIC LOSSES, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND WHETHER OR NOT FORESEEABLE.
11.3 Essential Purpose. The essential purpose of this Section 11 is to limit the potential liability of the parties arising under this Agreement. The parties acknowledge that the limitations set forth in this Section 11 are connected to the amount of consideration levied in connection with the license of the Datameer Product and that, were Datameer to assume any further liability, such consideration would, out of necessity, have been set much higher.
12.1 Miscellaneous Terms. All notices to a party shall be in writing and sent to the addresses specified on the Order Confirmation and shall be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement may not be assigned or transferred by Customer, by merger, operation of law or otherwise, without Datameer’s prior written consent. Any assignment in derogation of the foregoing is null and void. Datameer may freely assign or transfer this Agreement. This Agreement shall inure to the benefit of each party’s successors and permitted assigns. This Agreement, together with the Order Confirmation, and all exhibits, constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements and understandings between the parties relating to the subject matter hereof. This Agreement may be amended or superseded only by a written instrument signed by both parties. This Agreement shall be governed by the laws of the State of California, excluding its conflict of laws rules. Company expressly consents to the personal jurisdiction of the state and federal courts located in San Francisco County, California for any lawsuit or dispute arising from or related to this Agreement.
12.2 Conflict of Terms; Force Majeure. The parties agree that the United Nations Convention for the International Sale of Goods is excluded in its entirety from this Agreement. Any provision of this Agreement held to be unenforceable shall not affect the enforceability of any other provisions of this Agreement. In the event of any conflict between the terms of this Agreement and the terms set forth in an Exhibit or the Order Confirmation, the terms of this Agreement shall control. Neither party shall be in default if its failure to perform any obligation under this Agreement is caused solely by supervening conditions beyond that party’s reasonable control, including acts of God, civil commotion, war, strikes, labor disputes, third party Internet service interruptions or slowdowns, vandalism or “hacker” attacks, acts of terrorism or governmental demands or requirements.
12.3 Export Restrictions. Customer acknowledges and agrees that the Datameer Product and technology subject to this Agreement are subject to the export and reexport control laws and regulations of the United States and any applicable jurisdiction, including but not limited to the Export Administration Regulations (“EAR”), and sanctions regimes of the U.S. Department of Treasury, Office of Foreign Asset Controls. Customer will comply with these laws and regulations. Customer shall not without prior U.S. government authorization, export, reexport, or transfer any goods, software, or technology subject to this Agreement, either directly or indirectly, to any country subject to a U.S. trade embargo (currently Cuba, Iran, North Korea, Sudan, and Syria) or to any resident or national of any such country, or to any person or entity listed on the “Entity List” or “Denied Persons List” maintained by the U.S. Department of Commerce or the list of “Specifically Designated Nationals and Blocked Persons” maintained by the U.S. Department of Treasury.
12.4 U.S. Government Rights. The Datameer Products are Commercial Items as that term is defined and used in the Federal Acquisition Regulation, 48 C.F.R. 2.101 and 48 C.F.R. Part 12, and is comprised of “commercial computer software” and “commercial computer software documentation.” If obtained by or on behalf of a civilian agency, the U.S. Government obtains this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data). If obtained by or on behalf of an agency or entity of the Department of Defense (“DoD”), the U.S. Government licensee obtains this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202-3 and 48 C.F.R. 227.7202-4 of the DoD FAR Supplement (“DFARS”) and its successors, and consistent with 48 C.F.R. 227.7202-1. This U.S. Government Rights clause is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses Government rights in computer software or computer software documentation.