SOFTWARE LICENSE AND MAINTENANCE AGREEMENT *** IMPORTANT INFORMATION - PLEASE READ CAREFULLY ***
This Software License and Maintenance Agreement (the “Agreement”) is a legally binding document between you (meaning the individual person or the entity that the individual represents that has obtained the Software for its internal productive use and not for outright resale) (the "Customer") and ARVIZIO INC. (“ARVIZIO”). Unless ARVIZIO agrees otherwise in writing, this Agreement solely governs Customer's use of the Software except to the extent all or any portion of the Software is: (a) the subject of a separate written agreement; or (b) governed by a third party ARVIZIO's terms and conditions. Capitalized terms have meaning stated in the Agreement. If Customer does not have a currently enforceable, written and separately signed software license agreement directly with ARVIZIO or the Distributor from whom Customer obtained this Software, then by clicking on the "Agree" or "Accept" button, or proceeding with the installation, downloading, use or reproduction of the Software, or authorizing any other person to do so, you are representing to ARVIZIO that you are (i) authorized to bind the Customer and have all right, power and authority to enter into the Agreement; and (ii) agreeing on behalf of the Customer that the terms of this Agreement shall govern the relationship of the parties with regard to the subject matter in this Agreement and are waiving any rights, to the maximum extent permitted by applicable law, to any claim anywhere in the world concerning the enforceability or validity of this Agreement. If Customer has a currently enforceable, written and separately signed software license agreement directly with ARVIZIO or the Distributor from whom Customer obtained this Software, then by clicking on the "Agree" or "Accept" button, or proceeding with the installation, downloading, use or reproduction of this Software, or authorizing any other person to do so, you are representing that you are (i) authorized to bind the Customer and have all right, power and authority to enter into the Agreement; and (ii) agreeing on behalf of the Customer that the terms of such written, signed agreement shall replace and supersede the terms of this Agreement and shall govern the relationship of the parties with regard to this Software, and are waiving any rights, to the maximum extent permitted by applicable law, to any claim anywhere in the world concerning the enforceability or validity of such written signed agreement. IF YOU DO NOT HAVE AUTHORITY TO AGREE TO THE TERMS OF THIS AGREEMENT ON BEHALF OF THE CUSTOMER, OR DO NOT ACCEPT THE TERMS OF THIS AGREEMENT ON BEHALF OF THE CUSTOMER, CLICK ON THE "CANCEL" OR "DECLINE" AND/OR IMMEDIATELY CEASE ANY FURTHER ATTEMPT TO INSTALL, DOWNLOAD OR USE THIS SOFTWARE FOR ANY PURPOSE, AND REMOVE ANY PARTIAL OR FULL COPIES MADE FROM THIS SOFTWARE. 1. DEFINITIONS. For the purposes of this Agreement, the following terms have the following meanings: A. "Affiliate" means a legal entity that is controlled by, controls, or is under common "control" of ARVIZIO or Customer. "Control" means more than 50% of the voting power or ownership interests. B. "Confidential Information" means and includes the terms of this Agreement, Software, and Support Tools and all confidential and proprietary information of ARVIZIO or Customer, including without limitation, all business plans, product plans, financial information, software, designs, and technical, business and financial data of any nature whatsoever. Confidential Information does not include information that is (i) rightfully in the receiving party's possession without obligation of
confidentiality prior to receipt from the disclosing party, (ii) a matter of public knowledge through no fault of the receiving party, (iii) rightfully furnished to the receiving party by a third party without restriction on disclosure or use; or (iv) independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information. C. "Distributor" means a reseller, distributor, system integrator, service provider, independent software vendor, value-added reseller, OEM or other partner that is authorized by ARVIZIO to license Software to end users. The term shall also refer to any third party duly authorized by a Distributor to license Software to end users. D. "Documentation" means the then-current, generally available, written user manuals, online help and guides and any other materials provided by ARVIZIO relating to the Software in printed, electronic or other form. E. "Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trade-mark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world. F. "Product Notice" means the notice by which Arvizio informs Customer of product-specific use rights and restrictions, warranty periods, warranty upgrades and maintenance (support) terms. Product Notices may be delivered in an Arvizio quote, otherwise in writing and/or a posting on the Arvizio company website. G. "Software" means the ARVIZIO software product and Software Releases and Documentation which requires acceptance of this Agreement, and any copies made by or on behalf of Customer. H. "Software Release" means any subsequent version of Software provided by ARVIZIO after initial delivery of Software but for clarity does not mean a new item of Software. J. "Support Tools” means any hardware, software and other tools and/or utilities used by ARVIZIO to perform diagnostic or remedial activities in connection with Software including any software or other tools made available by ARVIZIO to Customer to enable Customer to perform various self-maintenance activities. 2. LICENSE TERMS. A. General License Grant. Subject to Customer's strict compliance with all terms and conditions set forth in this Agreement, the Product Notice, and payment of all license fees, ARVIZIO grants to Customer a non-exclusive, non-transferable and non-sublicensable (except as otherwise permitted herein) license to use (i) Software for Customer's internal business purposes; and (ii) the Documentation related to Software for the purpose of supporting Customer's use of Software, and subject to all conditions and limitations set forth in this Agreement. Licenses granted to Customer shall comply with the terms indicated on the Product Notice, trial agreement or quote from ARVIZIO or Distributor, and commence on delivery of the physical media or the date Customer is notified of electronic availability, as applicable. Documentation is licensed solely for purposes of supporting Customer's use of Software as permitted in this Section. To the extent applicable to Software, Customer may be required to follow ARVIZIO’s then current product registration process, if any, to obtain and input an authorization key or license file. B. Licensing Models. Software is licensed for use only in accordance with the commercial terms and restrictions of the Software's relevant licensing model, which are stated in the Product Notice or quote from ARVIZIO or Distributor. For example, the licensing model may provide that Software is licensed for use solely (i) for a certain number of licensing units; (ii) on or in connection with certain hardware, or a CPU, network or other hardware environment; and/or (iii) for a specified amount of storage capacity.
C. License Restrictions. Customer is permitted to copy Software and Documentation only insofar as reasonably necessary in connection with Customer’s authorized internal use of Software. Customer shall not, directly or indirectly, and without ARVIZIO’s prior written consent: (i) use Software in a service bureau, application service provider or in any other way beyond the scope of license granted herein; (ii) disclose to any third party the results of any comparative or competitive analyses, benchmark testing or analyses of Software performed by or on behalf of Customer, or any other purpose that is to Arvizio’s commercial disadvantage; (iii) make available Software in any form to anyone other than Customer's employees or contractors; (iv) transfer Software to an Affiliate or a third party; (v) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof; (vi) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
(vii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
(viii) remove, delete, alter or obscure any trade-marks or any copyright, trade-mark, patent or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof; or
(ix) use the Software or Documentation in violation of any law, regulation or rule.
D. Responsibility for Use of Software. Customer is responsible and liable for all uses of the Software and Documentation through access thereto provided by Customer, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Customer is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation, whether such access or use is permitted by or in violation of this Agreement.
E. Software Releases. All Software Releases shall be subject to the same licensing terms applicable to Software and as further outlined herein.
F. Audit Rights. Arvizio may, in Arvizio’s sole discretion, audit Customer’s use of the Software to ensure Customer’s compliance with this Agreement, provided that Customer shall be given reasonable notice to the audit. Arvizio also may, in its sole discretion, audit Customer’s systems within twelve (12) months after Customer has ceased use of the Software to ensure Customer is no longer using the Software and has removed all copies of the Software from such systems as required hereunder. The Customer shall fully cooperate with Arvizio’s personnel conducting such audits and provide all reasonable access requested by the ARVIZIO to records, systems, equipment, information and personnel, including machine IDs, serial numbers and related information. Arvizio shall only examine information directly related to the Customer’s use of the Software. Arvizio may conduct audits only during Customer’s normal business hours and in a manner that does not unreasonably interfere with the Customer’s business operations.
If the audit determines that the Customer’s use of the Software exceeds or exceeded the use permitted by this Agreement, then:
(i) Customer shall, within ten (10) business days’ following the date of such determination by Customer or Arvizio’s written notification thereof, pay to ARVIZIO a retroactive fee for such excess use
determined in the sole discretion of Arvizio acting reasonably, and, unless Arvizio terminates this Agreement, obtain and pay for a valid license to bring Customer’s use into compliance with this Agreement. In determining the fees payable in accordance with the foregoing, (i) unless Customer can demonstrate otherwise by documentary evidence, all excess use of the Software shall be deemed to have commenced on the commencement date of this Agreement or, if later, the completion date of any audit previously conducted by ARVIZIO hereunder and continued uninterrupted thereafter, and (ii) the rates for such licenses shall be determined without regard to any discount to which Customer may have been entitled had such use been properly licensed before its commencement (or deemed commencement).
(ii) If the use exceeds or exceeded the use permitted by this Agreement by more than 10%, Customer shall also pay to Arvizio, within ten (10) business days’ following the date of Arvizio’s written request therefor, Arvizio’s reasonable costs incurred in conducting the audit.
Arvizio’s remedies set forth in this Section are cumulative and are in addition to, and not in lieu of, all other remedies the ARVIZIO may have at law or in equity, whether under this Agreement or otherwise.
G. Termination. ARVIZIO may terminate licenses for cause, if Customer breaches the terms governing use of Software and fails to cure within thirty (30) days after receipt of ARVIZIO's written notice thereof. Upon termination of a license, Customer shall cease all use and return or certify destruction of the applicable Software and Documentation (including copies) to ARVIZIO.
H. Reserved Rights. All rights not expressly granted to Customer are reserved. In particular, no title to, or ownership of, the Software is transferred to Customer. Customer shall reproduce and include copyright and other proprietary notices on and in any copies of the Software.
I. Compliance Measures. The Software may contain technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against any use of the Software that is prohibited under this Agreement. Customer shall not, and shall not attempt to, remove, disable, circumvent or otherwise create or implement any workaround to, any such copy protection or security features.
J. Collection and Use of Information. Customer acknowledges that Arvizio may, directly or indirectly, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used, through the provision of maintenance and support services; and any security measures included in the Software. Customer agrees that Arvizio may use such information for any purpose related to any use of the Software by Customer or on Customer’s equipment, including but not limited to improving the performance of the Software or developing updates; and verifying Customer’s compliance with the terms of this Agreement and enforcing Arvizio’s rights, including all Intellectual Property Rights in and to the Software.
K. Intellectual Property Rights. Customer acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Customer. Customer does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions and restrictions under this Agreement. Arvizio reserves and retains its entire right, title and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Customer in this Agreement. Customer shall use commercially reasonable efforts to safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access. Customer shall promptly notify Arvizio if Customer becomes aware of any infringement of Arvizio’s Intellectual Property Rights in the Software and fully cooperate with Arvizio, in any legal action taken by Arvizio to enforce its Intellectual
Property Rights.
3. WARRANTY AND DISCLAIMER. A. Software Warranty. ARVIZIO warrants that Software will substantially conform to the applicable Documentation for such Software and that any physical media provided by ARVIZIO will be free from manufacturing defects in materials and workmanship until the expiration of the warranty period. ARVIZIO does not warrant that the operation of Software shall be uninterrupted or error free, that all defects can be corrected, or that Software meets Customer's requirements, except if expressly warranted by ARVIZIO in its quote or Product Notice. B. Warranty Duration. Unless otherwise stated on the ARVIZIO quote or Product Notice, the warranty period for Software shall (i) be as set forth in the quote or Product Notice; and (ii) commence upon delivery of the Software or the date Customer is notified of electronic availability, as applicable. C. Customer Remedies. ARVIZIO’s entire liability and Customer's exclusive remedies under the warranties described in this section shall be for ARVIZIO, at its option, to remedy the non-compliance or to replace the affected Software within a reasonable time. ARVIZIO shall have no liability hereunder after expiration of the applicable warranty period. The foregoing shall not void any supplementary remedies made available to Customer by a Distributor, with respect to which ARVIZIO shall have no liability or obligation. D. Warranty Exclusions. Warranty does not cover problems that arise from (i) accident or neglect by Customer or any third party; (ii) any third party items or services with which Software is used or other causes beyond ARVIZIO's control; (iii) installation, operation or use not in accordance with ARVIZIO's instructions or the applicable Documentation; (iv) use in an environment, in a manner or for a purpose for which Software was not designed; or (v) modification, alteration or repair by anyone other than ARVIZIO or its authorized representatives; ARVIZIO has no obligation whatsoever for Software installed or used beyond the licensed use. Removal or disablement of remote support capabilities during the warranty period requires reasonable notice to ARVIZIO such removal or disablement, or improper use or failure to use applicable Customer Support Tools shall be subject to a surcharge in accordance with ARVIZIO INC.'s then current standard rates. E. No Further Warranties. Except for the warranty set forth herein, and to the maximum extent permitted by law, ARVIZIO INC. (INCLUDING ITS SUPPLIERS) MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES, WRITTEN OR ORAL. INSOFAR AS PERMITTED UNDER APPLICABLE LAW, ALL OTHER WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING WARRANTIES ARISING BY STATUTE, COURSE OF DEALING OR USAGE OF TRADE. F. Warranty Null and Void. The warranties set forth in this Section will not apply and will become null and void if Customer breaches any provision of this Agreement. 4. SUPPORT SERVICES. A. Support Services. If Customer has purchased Support Services for Software directly from ARVIZIO INC., such shall be delivered by ARVIZIO INC. as specified in the applicable quote. If Customer has purchased maintenance and support from a Distributor, then ARVIZIO INC. may provide Support Services to the extent that the Distributor has contracted with ARVIZIO INC. to provide Customer with Support Services. B. Reinstatement of Lapsed Support. If Support Services expire or are terminated, and Customer subsequently seeks to reinstate Support Services, Customer shall pay: (i) the cumulative Support Services fees applicable for the period during which Support Services lapsed; (ii) the annual support fees for the then-current current period; and (iii) the then-current reinstatement fee and/or certification fees, as quoted by ARVIZIO INC. or a Distributor.
C. Support Tools. ARVIZIO INC. may use Support Tools or may make certain Support Tools available to assist Customer in performing various maintenance or support related tasks. Customer shall use Support Tools only in accordance with the terms under which ARVIZIO INC. makes such available. D. Additional Support Terms. Unless otherwise indicated in the quote, Support Services provided by ARVIZIO INC. shall consist of (i) using commercially reasonable efforts to remedy failures of Software to perform substantially in accordance with ARVIZIO INC.'s applicable Documentation; (ii) providing English-language (or where available, local language help line service (via telephone or other electronic media); and (iii) providing, or enabling Customer to download Software Releases and Documentation updates made generally available by ARVIZIO INC. at no additional charge to other purchasers of Support Service for the applicable Software. E. Software Releases. Upon use of a Software Release, Customer shall remove and make no further use of all prior Software Releases, and protect such prior Software Releases from disclosure or use by any third party. Customer is authorized to retain a copy of each Software Release properly obtained by Customer for Customer's archive purposes and use such as a temporary back-up if the current Software Release becomes inoperable. Customer shall use and deploy Software Releases strictly in accordance with terms of the original license for the Software. F. Support Services Exclusions. Support Services do not cover problems that arise from (i) accident or neglect by Customer or any third party; (ii) any third party items or services with which the Software is used or other causes beyond ARVIZIO INC.'s control; (iii) installation, operation or use not in accordance with ARVIZIO INC.'s instructions or the applicable Documentation; (iv) use in an environment, in a manner or for a purpose for which the Software or its related hardware was not designed; or (v) modification, alteration or repair by anyone other than ARVIZIO INC. or its authorized designees. ARVIZIO INC. has no obligation whatsoever for Software installed or used beyond the licensed use. Removal or disablement of Software's remote support capabilities during the term of Support Services requires reasonable notice to ARVIZIO INC. Customer's removal, disablement of remote support capabilities, or improper use of or failure to use Support Tools made available to Customer shall subject Customer to a surcharge in accordance with ARVIZIO INC.'s then current standard rates. 5. INDEMNITY. ARVIZIO INC. shall (i) defend Customer against any third party claim that Software or Support Services infringes a patent or copyright existing in the country in which ARVIZIO INC. is located, the United States of America or the European Union; and (ii) pay the resulting costs and damages finally awarded against Customer by a court of competent jurisdiction or the amounts stated in a written settlement negotiated by ARVIZIO INC. The foregoing obligations are subject to the following: Customer (a) notifies ARVIZIO INC. promptly in writing of such claim; (b) grants ARVIZIO INC. sole control over the defense and settlement thereof; (c) reasonably cooperates in response to an ARVIZIO INC. request for assistance; and (d) is not in material breach of this Agreement. Should any such Software or Support Service become, or in ARVIZIO INC.'s opinion be likely to become, the subject of such a claim, ARVIZIO INC. may, at its option and expense, (1) procure for Customer the right to make continued use thereof; (2) replace or modify such so that it becomes non-infringing; (3) request return of the Software and, upon receipt thereof; refund the price paid by Customer, less straight-line depreciation based on a three (3) year useful life for Software; or (4) discontinue the Support Service and refund the portion of any pre-paid Support Service fee that corresponds to the period of Support Service discontinuation. ARVIZIO INC. shall have no liability to the extent that the alleged infringement arises out of or relates to: (A) the use or combination of Software or Support Service with third party products or services; (B) use for a purpose or in a manner for which the Software or Support Service was not designed; (C) any modification made by any person other than ARVIZIO INC. or its authorized representatives; (D) any modifications to Software or Support Service made by ARVIZIO INC. pursuant to Customer's specific instructions; (E) any technology owned or licensed by Customer from third parties; or (F) use of any older version of the Software when use of a newer Software Release made available to
Customer would have avoided the infringement. THIS SECTION STATES CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND ARVIZIO INC.'S ENTIRE LIABILITY FOR THIRD PARTY INFRINGEMENT CLAIMS. 6. LIMITATION OF LIABILITY. A. Limited Warranty. (i) EXCEPT FOR THE EXPRESS LIMITED WARRANTIES PROVIDED HEREIN, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO CUSTOMER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT CONDITION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ARVIZIO, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES EXPRESSLY DISCLAIMS ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET POSSESSION AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PRFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, ARVIZIO PROVIDES NO CONDITION, WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE CUSTOMER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
(ii) IN NO EVENT WILL ARVIZIO OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE ARVIZIOS OR SERVICE PROVIDERS, BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR: (a) ANY: (i) USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SOFTWARE; (ii) LOST REVENUES OR PROFITS; (iii) DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL; (iv) LOSS OR CORRUPTION OF DATA; (v) LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN; (vi) FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION; (vii) FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; (viii) SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; (ix) BREACHES IN SYSTEM SECURITY; OR (b) ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, IN EACH CASE WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE ARVIZIO WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
B. Limitation on Direct Damages. EXCEPT WITH RESPECT TO CLAIMS ARISING UNDER SECTION 6 ABOVE, ARVIZIO’S TOTAL LIABILITY AND CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY TYPE WHATSOEVER, ARISING OUT OF SOFTWARE OR SERVICE PROVIDED HEREUNDER, SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY ARVIZIO’S SOLE NEGLIGENCE IN AN AMOUNT NOT TO EXCEED THE PRICE PAID BY CUSTOMER TO ARVIZIO FOR THE SPECIFIC SERVICE (CALCULATED ON AN ANNUAL BASIS, WHEN APPLICABLE) OR SOFTWARE FROM WHICH SUCH CLAIM ARISES, FOR DAMAGE OF ANY TYPE NOT IDENTIFIED ABOVE OR OTHERWISE EXCLUDED HEREUNDER.
C. No Indirect Damages. EXCEPT WITH RESPECT TO CLAIMS REGARDING VIOLATION OF ARVIZIO’S INTELLECTUAL PROPERTY RIGHTS OR CLAIMS ARISING UNDER SECTION 6 ABOVE, NEITHER CUSTOMER NOR ARVIZIO SHALL HAVE LIABILITY TO THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES
(INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, REVENUES, DATA AND/OR USE), EVEN IF ADVISED OF THE POSSIBILITY THEREOF. D. Special Exclusion. IN JURISDICTIONS THAT DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, ALL OR A PORTION OF SECTION 7.A AND/OR 7.B ABOVE MAY NOT APPLY. E. Regular Back-ups. As part of its obligation to mitigate damages, Customer shall take reasonable data back-up measures. In particular, Customer shall back-up the relevant data before ARVIZIO performs any remedial, upgrade, new Software Release or other works on Customer's production systems. To the extent ARVIZIO's liability for loss of data is not anyway excluded under this Agreement, ARVIZIO shall in case of data losses only be liable for the typical effort to recover the data which would have accrued if Customer had appropriately backed up its data. F. Limitation Period. Unless otherwise required by applicable law, the limitation period for claims for damages shall be twelve (12) months after the cause of action accrues, unless statutory law provides for a greater limitation period. 7. EVALUATION AND LOANED SOFTWARE. A. This Agreement shall also apply to "Evaluation Software" (meaning the copy of Software which contains this Agreement, including any copies made by or on behalf of Customer, and all Documentation for the foregoing, which are licensed for a limited duration for the specific purpose of evaluation prior to making a final decision on procurement, subject to the following: B. The particular Evaluation Software, period of use, installation site and other transaction-specific conditions shall be as mutually agreed between ARVIZIO and Customer. C. Notwithstanding any deviating terms in this Agreement, all licenses for Evaluation Software expire at the end of the evaluation period. D. Customer shall return Evaluation Software at the end of the evaluation or loan period or when sooner terminated by ARVIZIO for convenience by giving thirty (30) days' written notice, whichever occurs first. Customer shall bear the risk of loss and damage for return of physical media, if any, and de-installation. E. Customer may use Evaluation Software free of charge, but solely for the purpose of evaluation and not in a production environment. F. Without prejudice to any other limitations on ARVIZIO liability set forth in this Agreement (which shall also apply to Evaluation Software), Evaluation Software is provided "AS IS" and any warranty or damage claims against ARVIZIO in connection with Evaluation Software are hereby excluded, except in the event of fraud or willful misconduct of ARVIZIO. G. Unless otherwise specifically agreed in writing by ARVIZIO, ARVIZIO does not provide maintenance or support for any Evaluation Software. CUSTOMER RECOGNIZES THAT EVALUATION SOFTWARE MAY HAVE DEFECTS OR DEFICIENCIES WHICH CANNOT OR MAY NOT BE CORRECTED BY ARVIZIO. ARVIZIO shall have no liability to Customer for any action (or any prior related claims) brought by or against Customer alleging that Customer's sale, use or other disposition of any Evaluation Software infringes any patent, copyright, trade secret or other Intellectual Property Right. In event of such an action, ARVIZIO retains the right to terminate this Agreement and take possession of the Evaluation Software. THIS SECTION STATES ARVIZIO'S ENTIRE LIABILITY WITH RESPECT TO ALLEGED INFRINGEMENTS OF INTELLECTUAL PROPERTY RIGHTS BY EVALUATION SOFTWARE OR ANY PART OF IT OR ITS OPERATION.
8. CONFIDENTIALITY. Each party shall (i) use Confidential Information of the other party only for the purposes of exercising rights or performing obligations in connection with this Agreement; and (ii) use at least reasonable care to protect from disclosure to any third parties any Confidential Information disclosed by the other party for a period commencing upon the date of disclosure until three (3) years thereafter, except with respect to Customer data to which ARVIZIO INC. may have access in connection with the provision of Services, which shall remain Confidential Information until one of the exceptions stated in the above definition of Confidential Information applies. Notwithstanding the foregoing, either party may disclose Confidential Information (a) to an Affiliate for the purpose of fulfilling its obligations or exercising its rights hereunder as long as such Affiliate complies with the foregoing; and (b) if required by law provided the receiving party has given the disclosing party prompt notice. 9. GOVERNMENT REGULATIONS AND EXPORT CONTROL. Software and the technology included therein provided under this Agreement are subject to governmental restrictions on (i) exports from the U.S. and Canada; (ii) exports from other countries in which such Software and technology included therein may be produced or located; (iii) disclosures of technology to foreign persons; (iv) exports from abroad of derivative products thereof; and (v) the importation and/or use of such Software and technology included therein outside of the United States, Canada or other countries (collectively, "Export Laws"). Customer shall comply with all Export Laws and ARVIZIO export policies to the extent such policies are made available to Customer by ARVIZIO. Diversion contrary to Canada and U.S. law or other Export Laws is expressly prohibited.
10. TERM AND TERMINATION. This Agreement and the license granted hereunder shall remain in effect until terminated as set forth herein. Customer may terminate this Agreement for its convenience upon thirty (30) days' notice to ARVIZIO. Either Customer or ARVIZIO may terminate this Agreement upon written notice due to the other party's material breach of the terms governing use of the Software; provided that such breach is not cured within thirty (30) days after the provision of written notice to the breaching party specifying the nature of such breach. ARVIZIO may terminate this Agreement if Customer files an assignment in bankruptcy or has a bankruptcy order made against it under any bankruptcy or insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, receiver-manager, monitor or custodian for all or a substantial part of its property.
Upon termination of this Agreement, Customer shall cease all use and return or certify destruction of the applicable Software (including copies) to ARVIZIO. Any provision that by its nature or context is intended to survive any termination or expiration, including but not limited to provisions relating to payment of outstanding fees, confidentiality and liability, shall so survive.
11. MISCELLANEOUS. A. References. ARVIZIO may identify Customer for reference purposes unless and until Customer expressly objects in writing B. Notices and Language. Any notices permitted or required under this Agreement shall be in writing, and shall be deemed given when delivered (i) in person, (ii) by overnight courier, upon written confirmation of receipt, (iii) by certified or registered mail, with proof of delivery, (iv) by facsimile transmission with confirmation of receipt, or (v) by email, with confirmation of receipt (except for routine business communications issued by ARVIZIO, which shall not require confirmation from Customer). Notices shall be sent to the address, facsimile number or email address set forth below, or at such other address, facsimile number or email address as provided to the other party in writing. Notices shall be sent to: ARVIZIO INC. 245 Menten Place, Suite 310, Ottawa, ON, Canada K2H 9E8 The parties agree that this Agreement has been written in the English language, that the English language version shall govern and that all notices shall be in the English language.
C. Entire Agreement. This Agreement (i) is the complete statement of the agreement of the parties with regard to the subject matter hereof; and (ii) may be modified only by a writing signed by both parties. All terms of any purchase order or similar document provided by Customer, including but not limited to any pre-printed terms thereon and any terms that are inconsistent or conflict with this Agreement, shall be null and void and of no legal force or effect. D. Force Majeure. Except for the payment of fees, if any, due to ARVIZIO from Customer, neither party shall be liable under this Agreement because of a failure or delay in performing its obligations hereunder on account of any force majeure event, such as strikes, riots, insurrection, terrorism, fires, natural disasters, acts of God, war, governmental action, or any other cause which is beyond the reasonable control of such party. E. Assignment. Customer shall not assign this Agreement or any right or delegate any performance without ARVIZIO prior written consent, which consent shall not be unreasonably withheld. Customer shall promptly notify ARVIZIO and ARVIZIO may terminate this Agreement on thirty (30) days' notice, if Customer merges with or is acquired by a third party or otherwise undergoes a change of control. F. Governing Law. This Agreement is governed by the laws of the Province of Ontario and the laws of Canada applicable therein. In each case, the applicability of laws shall exclude any conflict of law rules. The U.N. Convention on Contracts for the International Sale of Goods shall not apply. In the event of a dispute concerning this Agreement, Customer consents to the sole and exclusive personal jurisdiction of the courts of competency in the location where ARVIZIO is domiciled. G. Waiver. No waiver shall be deemed a waiver of any prior or subsequent default hereunder. If any part of this Agreement is held unenforceable, the validity of the remaining provisions shall not be affected. H. Partial Invalidity. If any part of this Agreement, a purchase order or an ARVIZIO quote is held unenforceable, the validity of the remaining provisions shall not be affected.