THIS END USER SUBSCRIPTION AGREEMENT (THE “AGREEMENT”) IS BY AND BETWEEN TIGERA, INC., LOCATED AT 58 MAIDEN LANE, SAN FRANCISCO, CA 94108 (“TIGERA”), AND THE INDIVIDUAL OR LEGAL ENTITY WHICH IS INSTALLING AND USING THE APPLICABLE SOFTWARE MADE AVAILABLE BY TIGERA (“CUSTOMER”) AND GOVERNS ALL USE BY CUSTOMER OF SUCH SOFTWARE.
BY INSTALLING AND/OR USING THE SOFTWARE AND/OR EXECUTING AN ORDER FORM FOR THE SOFTWARE THAT REFERENCES THIS AGREEMENT, CUSTOMER EXPRESSLY ACCEPTS AND AGREES TO THE TERMS OF THIS AGREEMENT. IF YOU ARE AN INDIVIDUAL AGREEING TO THE TERMS OF THIS AGREEMENT ON BEHALF OF AN ENTITY, SUCH AS YOUR EMPLOYER, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY, AND “CUSTOMER” SHALL REFER HEREIN TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU MUST NOT EXECUTE AN ORDER FORM AND MAY NOT INSTALL OR USE THE SOFTWARE.
This Agreement, together with any ordering documents for the Licensed Software, Support Services, or Professional Services (all as defined below) (“Order Form(s)”), governs Customer’s installation and use of Tigera’s Licensed Software and receipt of Support Services and/or Professional Services. This Agreement is effective as of either: (a) the Subscription Start Date specified in the Order Form with Tigera, or (b) the Subscription Start Date identified in an Order Form with a partner of Tigera that is authorized to resell subscriptions to the Licensed Software, Support Services, and/or Professional Services (“Reseller”).
1. License.
1.1 Ordering and Provisioning. Customer may purchase a subscription to use Tigera’s software identified in the applicable Order Form (“Licensed Software”) by executing an Order Form referencing this Agreement. Specific business terms associated with Customer’s subscription to the Licensed Software (such as payment terms, fees, and any limitations on the Licensed Software license) will be on such Order Form(s). Once Customer executes an Order Form, Tigera will make the necessary information available to Customer in order for Customer to download, install, and access the Licensed Software.
1.2 License. Subject to the terms and conditions of this Agreement and only during the Subscription Term (as defined below), Tigera grants Customer a worldwide, limited, non-sublicensable, non-exclusive, and non-transferable subscription license to (a) download, install, execute and use the Licensed Software solely for Customer’s internal business purposes, and solely in accordance with the Documentation and/or any restrictions in the applicable Order Form, and (b) use the Documentation for Customer’s internal business purposes. For the purposes of this Agreement, “Documentation” means Tigera’s generally published technical documentation regarding the Licensed Software. The Documentation does not include advertising, marketing materials, information disseminated via mailing lists, and other forms of public communication from Tigera, even if such public communications are regarding the Licensed Software. Unless otherwise stated on an Order Form, the Licensed Software is licensed by a single deployment of Licensed Software installed on a physical or virtual computer or server (“Node”).
1.3 Support. Customer will receive technical support services with every subscription of Licensed Software at no additional charge (“Support Services”). Customer may also purchase Support Services for certain OSS (as defined in Section 1.7 below) under an Order Form. The Licensed Software and/or OSS that Customer has purchased Support Services for will collectively be the “Supported Software.” Subject to the terms of this Agreement, Tigera will use commercially reasonable efforts to provide the Support Services for the Supported Software in accordance with Tigera’s support terms located at https://www.tigera.io/legal/support-policy/. As Tigera’s Support Services evolve to meet customer and business needs, Tigera may update its Support Services by posting its updated terms to the URL listed above.
1.4 Control Mechanisms. Customer acknowledges and agrees that the Licensed Software may include features to prevent use after the applicable Subscription Term and/or use inconsistent with this Agreement (“Control Mechanism”). Customer will not destroy, disable or circumvent, or attempt to destroy, disable or circumvent, in any way the Control Mechanism and/or the use and time limitations set by the Control Mechanism. Customer acknowledges and agrees that any attempt to exceed the use of the Licensed Software beyond the limits configured into the Control Mechanism will automatically and immediately terminate the licenses granted under this Agreement.
1.5 Restrictions. Customer will not, and will not permit others to, directly or indirectly, (a) modify, translate, adapt or create derivative works based on the Licensed Software, (b) reverse-engineer, decompile or disassemble or otherwise attempt to discover the source code or underlying ideas of the Licensed Software (except as expressly authorized under applicable statutory law), (c) transfer, resell, distribute, rent, lease, or sublease the Licensed Software, (d) use the Licensed Software in any service bureau, timesharing, software-as-a-service, application service provider, or any other similar arrangement, (e) use more than the number of Nodes stated in the Order Form or otherwise use the Licensed Software in violation of any usage limitations contained on an Order Form, (f) remove, alter, or obscure any proprietary rights notices, trademarks, or branding contained within the Licensed Software, (g) use the Licensed Software in violation of any applicable local, state, or federal law or regulation, (h) use the Licensed Software in a manner that infringes or may infringe upon any copyrights, trademarks, patents, trade secrets, or other types of intellectual property of third parties, (i) publish or disclose to any third party the results of any benchmark or comparison tests, including performance information, run on the Licensed Software, or (j) use the Licensed Software in a manner that exposes or may expose Tigera, its customers, partners, or vendors, or any other person or entity using Tigera products or services to security breaches, abuse, complaints, retaliation, or any other negative impact. Tigera reserves the right to immediately suspend, terminate or otherwise deny Customer’s license to the Licensed Software, without liability, if: (i) Tigera receives a judicial or other governmental demand or order, subpoena or law enforcement request that requires Tigera to do so; (ii) Tigera reasonably believes that Customer has failed to comply with this Section or any material term of this Agreement, or accessed or used the Licensed Software beyond the scope of the rights granted by this Agreement or for a purpose not authorized under this Agreement or in any manner that does not comply with any material instruction or requirement of the Documentation; or (iii) this Agreement expires or is terminated.
1.6 OSS. Customer acknowledges that certain open source software may be provided to or otherwise downloaded by Customer in order for customer to utilize the Licensed Software (“OSS”) and that certain elements of the Licensed Software may be OSS. As OSS is open source software that is contributed by the community and licensed under third-party licenses, OSS is not considered Licensed Software under this Agreement. The license terms that govern Customer’s installation and use of the OSS can be found at https://www.tigera.io/legal/component-licenses. Tigera may update the OSS licenses listed at the foregoing URL from time to time as needed.
1.7 Customer Systems. Customer is responsible for purchasing, installing and maintaining any ancillary equipment or other services necessary for, or useful in, using the Licensed Software (“Customer Systems”). Customer is fully responsible for maintaining the security of its Customer Systems and for all uses of its Customer Systems. Tigera is not responsible for any losses of data or other failures of the Licensed Software caused by the Customer Systems.
2. Beta Products.
Occasionally, Tigera looks for customers to help Tigera test new products or services or new features of Tigera’s existing products or services. If Tigera wishes for Customer to test beta features, products or services, Tigera will either request whether Customer would like to test such beta features, products or services or these features will simply be made available for download as “beta” or “pre-release,” (or words or phrases with similar meanings) (each, a “Beta Product”). Customer will have the option to use Beta Products or refrain from using them. If Customer chooses to use a Beta Product, Customer understands and agrees that Beta Products are made available on an “as is,” and “as available” basis and, to the extent permitted under applicable law, without any warranties, indemnities, or contractual commitments of any kind.
3. Professional Services.
From time to time, upon the mutual agreement of the parties, Tigera may provide certain training and other consulting services to Customer pursuant to an Order Form or other statement of work executed by the parties (collectively “Professional Services”). As part of the Professional Services, Tigera may provide certain materials, information, handouts, and other items to Customer (“Consulting Materials”). Tigera hereby grants Customer a worldwide, limited, non-sublicensable, non-exclusive, and non-transferable license to use the Consulting Materials for its own internal business purposes in connection with its use of the Licensed Software. Professional Services purchased must be fully utilized by the end of the Initial Term or Renewal Term in which they are purchased, otherwise they expire.
4. Customer Data.
4.1 Customer Data. Customer understands and agrees that the Licensed Software will be installed on servers that are owned or controlled by Customer. As such, Tigera does not receive, store, or process, any data or information (including personal and sensitive data) from Customer (“Customer Data”) in order to provide the Licensed Software. Accordingly, Tigera is not responsible or liable for the breach, loss, destruction, or security of Customer Data in the course of Customer using the Licensed Software. Moreover, when using the Licensed Software, Customer is responsible for (a) the security of its own and any of Customer’s third-party proprietary, personally identifiable and Confidential Information, (b) the monitoring of access to Customer’s Systems, and (c) for maintaining adequate procedures apart from the Licensed Software to reconstruct lost or altered files, data, or programs.
4.2 Aggregated Data. As part of providing the Software, Tigera collects certain information that results from such provision and use (e.g. metadata and data relating to the use and performance of the Software) and aggregates such information in an anonymized format (“Aggregated Data”). Tigera has the right to collect and analyze Aggregated Data and Customer hereby gives Tigera the right to use the Aggregated Data (during and after the Subscription Term) to modify, improve, enhance, and provide the Licensed Software, and for other development, diagnostic and corrective purposes in connection with the Licensed Software and other offerings of Tigera.
5. Feedback.
Customer may from time to time provide suggestions, comments or other feedback with respect to the Licensed Software or Professional Services (“Feedback“), and Tigera may want to incorporate such Feedback into its Licensed Software or Professional Services. Customer hereby grants to Tigera an unlimited, royalty-free, worldwide, perpetual, irrevocable, fully transferable and sublicenseable right and license to use, disclose, reproduce, modify, create derivative works from, distribute, display, and exploit any Feedback as Tigera sees fit, entirely without obligation or restriction of any kind, except that Tigera will not identify Customer as the provider of such Feedback.
6. Fees, Payment, and Taxes.
6.1 Fees and Payment. Customer agrees to pay Tigera for Customer’s license to the Licensed Software and for receipt of certain Support Services and Professional Services, all in accordance with the applicable Order Form (collectively the “Fee(s)”). Customer agrees that if Customer exceeds any capacity limitations contained in this Agreement or on an Order Form, such excessive use of the Licensed Software will be subject to additional charges (which will be invoiced to Customer and payable under the same terms as Fees under this Agreement). Tigera will invoice Customer for the Fees on the dates stated in each Order Form. Full payment (without deduction or setoff) for all invoices submitted by Tigera to Customer is due thirty (30) days after the date of such invoice. The Fee is payable in U.S. dollars and is non-cancelable and non-refundable except as expressly stated in this Agreement. Any usage over contracted amounts will be billed on a monthly basis. The contract includes a fixed amount of node hours and ingested data. Node hours and/or ingested data used in excess of contracted amounts will be billed at contracted rates.
6.2 Taxes. The Fee is exclusive of any sales, use, withholding or other taxes, which are the responsibility of Customer (other than taxes on Tiger’s income or revenue). If Tigera pays any taxes on Customer’s behalf, Customer will promptly reimburse Tigera.
6.3 Unpaid Amounts. If any Fee is not paid when due, Tigera may suspend licenses and services until such Fee is paid and/or impose interest on such unpaid Fee at accrual rate of 1.5% per month, or the highest legal interest rate, whichever is less. Customer will also pay all costs and expenses, including reasonable attorneys’ fees, expended or incurred by Tigera in connection with the collection of any unpaid amounts hereunder.
6.4 Reseller Terms. In the event Customer obtains the Licensed Software from a Reseller, the applicable billing, payment, ordering and delivery terms will be agreed upon between Customer and the Reseller.
7. Proprietary Rights.
7.1 Customer’s Ownership. Customer owns all right, title, and interest in and to the Customer Data and its Confidential Information and all intellectual property rights therein. There are no implied licenses to Customer Data or Customer Confidential Information under this Agreement, and any rights not expressly given in this Agreement are hereby expressly reserved by Customer.
7.2 Tigera’s Ownership. Tigera and its licensors own all right, title, and interest in and to, or have the necessary rights and licenses to, the Licensed Software, the Documentation, any Training Materials, and all updates, upgrades, fixes, or enhancements thereto and modifications or derivative works thereof and all intellectual property rights therein. Tigera also owns all right, title, and interest in and to its Confidential Information and any results, materials, code or anything produced by Tigera as part of the Support Services. There are no implied licenses under this Agreement and any rights not expressly given in this Agreement are hereby expressly reserved by Tigera and its licensors. The Licensed Software is licensed and not sold; Customer acquires no ownership or other interest in or to the Licensed Software or the Documentation. Any third-party software provided by Tigera as part of or in connection with the Licensed Software may only be used with the Licensed Software and not on a stand-alone basis.
8. Term and Termination.
8.1 Term. The Agreement shall apply to each Order Form and shall be in effect until the expiration of the latest Order Form. The Order Form starts on the Subscription Start Date specified on the Order Form and continues for the duration stated on such Order Form (“Initial Term”). After the Initial Term, the Order Form shall automatically renew at the end of the Initial Term for successive periods equal to the Initial Term (each a “Renewal Term”) unless, at least sixty (60) days before the anniversary of the start date of the Initial Term or Renewal Term (as applicable), (a) either party provides written notice of its intent not to renew the applicable Order Form or (b) Tigera provides written notice to Customer of its intent to increase the Fees for upcoming Renewal Term. The Initial Term together with any Renewal Terms will be the “Subscription Term.” Notwithstanding the above, any termination of this Agreement shall terminate all outstanding Order Forms.
8.2 Termination. Either party may immediately terminate this Agreement if the other party materially breaches this Agreement and does not cure such breach within thirty (30) days’ (ten (10) days in the event of non-payment) of receipt of written notice of such breach.
8.3 Effect of Termination. Upon any termination of this Agreement, all licenses granted under this Agreement will immediately terminate and Customer will immediately cease using and deinstall and destroy all copies of the Licensed Software. No termination of this Agreement will relieve Customer of its obligation to pay any amounts due Tigera under this Agreement.
8.4 Survival. The rights and obligations set forth in Sections 1.5, 4 – 9, 10.4, and 12 – 14 will survive any termination of this Agreement.
9. Confidentiality.
9.1 Definition. Each party (the “Disclosing Party”) may disclose certain Confidential Information to the other party (the “Recipient”) in the course of carrying out its obligations under this Agreement. For the purposes of this Agreement, “Confidential Information” will mean any non-public business information of the Disclosing Party, whether or not owned or developed by the Disclosing Party, which the Recipient may obtain knowledge of through carrying out its obligations hereunder that a reasonable person would consider to be confidential given the nature of the information disclosed or the circumstances of disclosure. Confidential Information may include, but is not limited to, information about the Disclosing Party’s, operations and maintenance, algorithms, trade secrets, software, design, technology, ideas, know-how, processes, formulas, compositions, data, techniques, improvements, inventions (whether patentable or not), works of authorship, business and product development plans, problem resolution data, and other information concerning the Disclosing Party’s actual or anticipated business, research or development. Customer’s confidential information will include the Customer Data. Tigera’s Confidential Information will include the Licensed Software and Documentation and any Training Materials. Confidential Information also includes any information which the Disclosing Party obtains from any third party which the Disclosing Party indicates is Confidential Information.
9.2 Exceptions. The Disclosing Party agrees that the foregoing obligations shall not apply with respect to any information that the Recipient can document (a) is or becomes generally available to the public through no fault of the Recipient, (b) was in its possession or known by it prior to receipt from the Discloser, (c) was disclosed to it without restriction by a third party, (d) was independently developed without use of or reference to any Confidential Information of the Disclosing Party, or (e) is required to be disclosed by the Recipient in response to a valid court order or to comply with applicable laws or governmental regulations, provided that the Recipient provides to the Disclosing Party prior written notice of such disclosure and a reasonable opportunity to contest such disclosure and thereafter cooperates with the Disclosing Party to minimize the extent and scope of such disclosure.
9.3 Obligations. The Recipient agrees to (a) hold the Disclosing Party’s Confidential Information in strict confidence and not disclose such Confidential Information to any third party without the prior written consent of a duly authorized representative of the Disclosing Party, and (b) use such Confidential Information only for the purpose of carrying out its obligations under this Agreement. Recipient also agrees that Confidential Information will be disseminated only to those employees, officers, directors, consultants, and contractors with a clear and well-defined “need to know” purpose who are informed of and bound by the obligations of this Agreement or another agreement with terms just as protective of the Disclosing Party as the terms of this Agreement.
10. Warranties and Disclaimer.
10.1 Mutual Warranties. Each Party represents and warrants to the other party that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering; (b) it has the full right, power and authority to enter into this Agreement and to perform its obligations hereunder; (c) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the party; and (d) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such party in accordance with its terms.
10.2 Software Warranty. Tigera warrants that for ninety (90) days from the Subscription Start Date, the Licensed Software will perform in all material respects in compliance with the applicable Documentation (“Software Warranty”). For any claim under the Software Warranty, Customer will promptly notify Tigera in writing of its claim and, provided that such claim is determined by Tigera to be Tigera’s responsibility, Tigera will: (a) use commercially reasonable efforts to correct any error in the Licensed Software; or (b) provide Customer with a plan for correcting any such error. The Software Warranty is made to and for the benefit of Customer only.
10.3 Services Warranty. Tigera warrants that the Support Services and Professional Services will be provided in a professional and workmanlike manner using reasonable efforts consistent with prevailing industry standards.
10.4 Exclusions. Tigera shall be relieved of its warranty and Support Services obligations if the defect or nonconformity results from: (a) the use or combination of the Licensed Software with any software or hardware that is not provided by Tigera; (b) causes external to the Licensed Software, such as problems with any other hardware, software or other infrastructure with which the Licensed Software is used; (c) improper, unauthorized or negligent installation, configuration or use of the Licensed Software (including, but not limited to, use of the Licensed Software that is inconsistent with the sizing, use cases, design or architecture of the Licensed Software purchased by Customer); (d) any alterations or modifications made to the Licensed Software by anyone other than Tigera; (e) use of Licensed Software versions which are unsupported by Tigera; (f) use of hardware or software which is not listed in the Requirements section of the Documentation; or (g) any other cause not within Tigera’s reasonable control.
10.5 Warranty Disclaimer. THE WARRANTIES AND REMEDIES ABOVE IN THIS SECTION ARE CUSTOMER’S SOLE AND EXCLUSIVE WARRANTIES AND REMEDIES AND REPLACE ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. EXCEPT AS EXPRESSLY PROVIDED ABOVE, CUSTOMER ACKNOWLEDGES THAT THE LICENSED SOFTWARE IS PROVIDED “AS IS.” WITHOUT LIMITATION TO THE FOREGOING, TIGERA AND ITS LICENSORS PROVIDE NO WARRANTY OR UNDERTAKING, AND MAKE NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE OR DOCUMENTATION WILL MEET CUSTOMER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
11. License Compliance.
The Licensed Software may contain a feature that measures Customer’s usage and determines Customer’s compliance with the applicable Order Form(s) and with the other terms and conditions of this Agreement. However, if necessary, Customer agrees to cooperate with Tigera in determining such compliance, which may include (a) running scripts on the servers where the Licensed Software is installed to measure usage, (b) Customer completing a questionnaire within fourteen (14) days of request by Tigera (along with a certification from an executive as to its veracity), and/or, (c) an independent auditor (reasonably acceptable to Customer) coming onsite at Customer’s facilities to conduct an audit. Such onsite audit shall be upon fourteen (14) days’ notice and shall occur no more frequently than once every twelve (12) months. Customer will provide reasonable access and assistance in connection with such audit. In the event that Tigera finds that Customer is not in compliance with the Node restrictions in an applicable Order Form, or otherwise not using the Licensed Software in accordance with the terms and conditions of this Agreement, then, (a) in addition to paying any additional fees attributable such use (which shall be based on Tigera’s current price list then in effect), if the Node usage exceeds five percent (5%) of what is specified in the Order Form, then Customer agrees to reimburse Tigera for the cost of the audit (without limiting Tigera’s other rights under this Agreement or in law or equity), and (b) Tigera will have the right to audit Customer again on the same terms every three (3) months for the remainder of the Subscription Term.
12. Indemnification.
12.1 By Tigera. Except as set forth below, Tigera will defend at its expense any claim brought against Customer, and indemnify and hold harmless Customer against any costs, damages and reasonable attorneys’ fees finally awarded against Customer in, or payable in settlement of, such claim which are directly attributable to such claim, to the extent that it is based on a claim that the Licensed Software, when properly used within the scope of this Agreement, infringes a copyright, patent, trade secret or other intellectual property right of any third party; provided that (a) Tigera is notified in writing promptly of the claim, (b) Customer permits Tigera to assume sole control of the defense and/or settlement of the claim, and (c) Customer provides to Tigera reasonable cooperation, information and assistance (at Tigera’s expense) in connection therewith.
12.2 Additional Remedies. In addition, if Customer’s use of the Licensed Software is enjoined as a result of any claim of infringement, Tigera may, at its option and expense, (a) procure for Customer the right to continue using the Licensed Software as set forth hereunder, (b) modify the Licensed Software to make it non-infringing, (c) substitute materially equivalent software, or (d) if Tigera determines that options (a)-(c) are not commercially practicable within a commercially reasonable time period, terminate the licenses granted to such Licensed Software and provide a prorated refund of all unused, pre-paid Fees for such Licensed Software upon its return.
12.3 Exclusions. Tigera will have no liability or obligation to Customer hereunder, and Customer will indemnify, defend and hold Tigera harmless in accordance with this Section 12, with respect to any infringement claim based on: (a) misuse of the Licensed Software or other breach of this Agreement; (b) modifications, alterations, combinations or enhancements of the Licensed Software not created by Tigera; (c) any patent, copyright or other intellectual property right in which Customer or any affiliate has an interest; or (d) failure of Customer to install any corrections or enhancements to the Licensed Software made available by Tigera at no additional charge.
12.4 Sole Remedy. THIS SECTION 12 STATES TIGERA’S ENTIRE RESPONSIBILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
13. Limitation of Liability.
EXCEPT FOR TIGERA’S OBLIGATIONS UNDER SECTION 12, TIGERA’S MAXIMUM LIABLITY FOR DIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE FEES PAID BY CUSTOMER UNDER THE ORDER FORM IN QUESTION DURING THE IMMEDIATELY PRECEDING TWELVE-MONTH PERIOD. IN NO EVENT WILL TIGERA BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, RELIANCE OR EXEMPLARY DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE DAMAGES, EVEN IF TIGERA HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME.
14. General Provisions.
14.1 Export Control. Customer will not export or re-export the Licensed Software or any technical data or any copy, portions or direct product thereof (a) in violation of any laws and/or regulations, (b) without all required authorization into Cuba, Libya, North Korea, Iran, Iraq, or Rwanda or any other Group D:1 or E:2 country (or to a national or resident thereof); specified in the then current Supplement No. 1 to part 740 of the U.S. Export Administration Regulations (or any successor supplement or regulations), or (c) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. Customer will, at its own expense, obtain all necessary customs, import, or other governmental authorizations and approvals it requires to use the Licensed Software.
14.2 Force Majeure. A delay by either party in the performance of its obligations under the Agreement will not be deemed a default of the Agreement to the extent that the delay is attributable to a Force Majeure Event and could not have been prevented by the non-performing party taking reasonable precautions. For the purposes of this Agreement, “Force Majeure Event” means an act of war or terrorism, a riot, civil disorder, or rebellion, a fire, flood, earthquake, or similar act of God or a strike, lockout or similar labor dispute (though only if such strike, lockout or labor dispute does not involve the employees of the non-performing party), or electrical, internet or telecommunications outage that is beyond the reasonable control of the affected party.
14.3 Governing Law and Venue. This Agreement will be governed by and construed in accordance with the laws of the State of California without giving effect to any choice or conflict of law principle (whether of the State of California or any other jurisdiction). Any legal claim, suit, action or proceeding arising out of this Agreement (including its breach) will be instituted exclusively in the federal courts of the United States or the courts of the State of California, in each case located in the City of San Francisco, California. Each party irrevocably submits to the exclusive jurisdiction of such courts and waives any objection based on improper venue or forum non conveniens.
14.4 Waiver. The failure of either party to enforce any right or provision in the Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.
14.5 Severability. If any provision of this Agreement is adjudged by any court of competent jurisdiction to be illegal, unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable, but will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
14.6 Notices. Notices to be given or submitted by either party to other pursuant to this Agreement shall be in writing and directed to the address in the preamble to this Agreement or otherwise provided to the other party in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt), or (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested) or by certified or registered mail, return receipt requested, postage prepaid.
14.7 Publicity. Tigera may use the name or logo of Customer to reference Customer as a customer of Tigera either on Tigera’s promotional materials or website.
14.8 Entire Agreement. This Agreement constitutes the complete and exclusive statement of the mutual understanding of the parties and supersedes, cancels, and takes precedence over all previous or contemporaneous written and oral agreements, contracts, pre-printed terms and communications relating to the subject matter of this Agreement. No different or additional terms contained or referenced in a purchase order issued by Customer will apply, regardless of whether such purchase order is signed by both parties. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which will constitute the same instrument.
14.9 Modification. This Agreement may only be amended, modified or supplemented by a written agreement signed by each party hereto.
14.10 Independent Contractors. No joint venture, partnership, employment, or agency relationship exists between Tigera and Customer as a result of the Agreement or use of the Licensed Software. Each party is solely responsible for its actions or inactions, the parties will not be deemed to be agents of each other and no joint venture, franchise, partnership, agency, or other relationship will be created or implied by this Agreement.
14.11 Assignment. Neither party may transfer or assign this Agreement without the prior written consent of the other party, except in connection with a corporate reorganization, merger, acquisition or similar transaction. Any attempted assignment or transfer in violation of the foregoing shall be null and void and without further effect. Subject to the foregoing, this Agreement shall be binding on, and inure to the benefit of, the parties and their respective successors and assigns.
14.12 Non-Solicitation. Customer agrees that it shall not, during the term of this Agreement and for a period of one (1) year thereafter, solicit, employ or contract the services of any person who is or was employed or engaged by Tigera.
14.13 Future Commitments. Tigera has made no commitments or promises orally or in writing with respect to delivery of any future software features or functions. In relation to any future software features or functions, all presentations, RFP responses and/or product roadmap documents, information or discussions, either prior to or following the date hereof, are for informational purposes only, and Tigera has no obligation to provide any future releases or upgrades or any features, enhancements or functions, unless delivered as part of Support Services or as specifically agreed to in writing by both parties. Customer acknowledges that no purchasing decisions are based upon any future software features or functions.
14.14 Headings. The headings and section titles in this Agreement are for convenience only and will not be considered a part of, or be deemed to affect the construction or interpretation of, any provision of this Agreement.
14.15 U.S. Government Customers. If Customer is a branch or agency of the United States Government, the terms of this Section 14.13 apply. The Licensed Software contains “commercial computer software” as that term is described in DFAR 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or the documentation related to such commercial computer software as specified in 48 C.F.R. 12.212 (Computer Software) and 12.11 (Technical Data) of the Federal Acquisition Regulations and its successors. If acquired by or on behalf of any agency within the Department of Defense, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202 of the DOD FAR Supplement and its successors.
