This End User License Agreement (the “Agreement”) is made between you, the Customer (“Customer” or “You”) and the Provider, as defined below.

1. Definitions. Capitalized terms not defined in context shall have the meanings assigned to them below:
   • "Affiliate" means any legal entity controlling, controlled by, or under common control with a party to this Agreement, for so long as such control relationship exists.
   • "Documentation" means the then current user manuals and documentation that Provider makes available for the Software either through the electronic download of the Software or from the Support Site, and all copies of the foregoing.
   • "Effective Date" means the date that Customer accepts the Agreement.
   • "Feedback" means any suggestion or idea, in whatever form, for modifying any of Provider’s products or services,
   • "License Type" means the model by which the Software is licensed (e.g., by server, by managed user, or by other manner) as indicated in the applicable Order.
   • "Maintenance Services" means Provider’s then current maintenance and support offering specified in the applicable Order and made available to Customer as stated in the Maintenance Services Section below.
   • An "Order" is defined in Section 2 (Ordering).
   • "Partner" means a reseller or distributor that is under contract with Provider or another authorized party and is authorized via such contract to resell the Products and/or Maintenance Services.
   • "Product(s)" means the Software provided to Customer by Provider.
   • "Product Terms" means the terms associated with each License Type and any other terms associated with an individual Product. The Product Terms for Products in a Signed Order or a Governing Quotation shall be as stated in the Signed Order or Governing Quotation.
   • "Provider" means Persistent Systems Limited, with its principal place of business located in the Signed Order. If an Order is placed through and approved by an Affiliate of Provider, then that Affiliate shall be the Provider under this Agreement.
   • "Software" means any and all software that is provided or made available to Customer under this Agreement as well as any new versions and releases of such software that are made available to Customer pursuant to this Agreement, and, where applicable, all copies of the foregoing. Software includes On-Premises Software and SaaS Software (as defined in Appendix A Software License Terms).
   • "Support Site" means Provider’s website defining support, available at: Persistent Evolve Support Matrix
   • "Use" means Customer’s installation, deployment, access of or provision of access to, or operation of a Product.
2. Ordering. Customer may place an order for Products through (i) an ordering document signed by Customer and Provider ("Signed Order"),(ii) a Provider quotation referenced on a PO that states that it is governed exclusively by such quotation ("Governing Quotation"), or (iii) an order placed through a Partner. Each Order shall be Customer’s irrevocable commitment to purchase and pay for the Products and/or Maintenance Services stated in the Order, and each Order placed with Provider shall be subject to approval by Provider in writing or by performance. Customer may place Orders for professional services and training under Provider’s then current professional services terms. For the avoidance of doubt, no purchase order terms by Customer modify or supersede the terms stated herein.
3. Software License. Subject to Customer’s compliance with the terms of this Agreement, Provider grants to Customer, and Customer accepts from Provider, a non-exclusive, non-transferable (except as otherwise set forth herein) and non-sublicensable license to Use the quantities of each item of Software licensed from Provider or a Partner within the parameters of the Product Terms associated with the applicable Software and License Type referenced in the Order and as described in Appendix A hereto (a "License"). Except for MSP Licenses (as defined in Appendix A), Customer shall only Use the Software to support the internal business operations of itself and its worldwide Affiliates.
4. Restrictions. Customer may not, nor allow any third party to (a) Use the Software (except where a third-party Use is expressly permitted hereunder), (b) reverse engineer, decompile, or otherwise seek to access the source code of the Software, except to the extent these restrictions are prohibited by applicable law and then only upon advance written notice to Provider, (c) copy, modify, create derivative works of, or remove proprietary notices from the Products or Documentation, (d) resell, sublicense, distribute or rent the Products or Documentation, (e) use the Software to provide a hosted or managed service to third parties, except for MSP Licenses specifically stated in the Signed Order or Governing Quotation, (f) use the Products or Documentation to create or enhance a competitive offering or for any other purpose which is competitive to Provider, or (g) conduct security or vulnerability tests of the Software, interfere with its operation or circumvent any access, licensing or copying restrictions.
5. Proprietary Rights. Customer understands and agrees that (i) the Products are protected by copyright and other intellectual property laws and treaties, (ii) Provider, its Affiliates and/or its licensors own the Products, copyrights, and other intellectual property rights in the Products, (iii) the Software is licensed, and not sold, (iv) this Agreement does not grant Customer any rights to use Provider’s trademarks or service marks, and (v) Provider reserves any and all rights, implied or otherwise, which are not expressly granted to Customer in this Agreement. All rights not expressly granted to Customer are retained by Provider and any third-party suppliers to Provider who are intended third-party beneficiaries and may independently protect their rights, if any, in the Software. Nothing herein should be construed as granting Customer, by implication, estoppel, or otherwise, any license hereunder other than as expressly stated in this Agreement.
6. Title and Delivery. Provider, its Affiliates and/or its licensors own the title to all Software. Delivery of or access to Products shall be by electronic download.
7. Payment and Taxes. Customer agrees to pay to Provider (or, if applicable, Partner) the fees specified in each Order, Customer will be invoiced promptly following delivery of, or granting of access to, the Products or prior to the commencement of any renewal Maintenance Period or renewed Software term. Unless specified in a Signed Order Customer shall make all payments due to Provider in full within thirty (30) days from the date of each invoice or such other period (if any) stated in a Signed Order. Provider reserves the right to charge Customer a late penalty of 1.5% per month (or the maximum rate permitted by law, whichever is less) for any amounts payable to Provider by Customer that are not subject to a good faith dispute and that remain unpaid after the due date until such amount is paid. Amounts payable under this Agreement shall be paid in full without set-off or deduction by the Customer, and such amounts shall not be subject to any other limitations or exclusions, whether under this Agreement or otherwise arising in law. For the avoidance of doubt, Customer may not make any withholding on any payment owing to Provider whether for taxes or otherwise, unless the authorization for such withholding is made express by Provider in the Signed Order or Governing Quotation
8. Term and Termination.
   • Termination. This Agreement or the Licenses granted hereunder may be terminated by (i) mutual written agreement of Provider and Customer, (ii) either party for a material breach of this Agreement by the other party that the breaching party fails to cure to the non-breaching party’s reasonable satisfaction within thirty (30) days following its receipt of notice of the breach ("Breach"), and (iii) Provider for a Breach by a Third Party User or MSP Client.
   • Effect of License Termination. Upon termination of this Agreement or expiration or termination of a License for any reason, all rights granted to Customer for the applicable Software shall immediately cease, and Customer shall immediately: (i) cease using the applicable Software and Documentation, (ii) remove all copies, installations, and instances of the applicable Software from all Customer computers and any other devices on which the Software was installed, and ensure that all applicable Third Party Users and Clients do the same, (iii) return the applicable Software to Provider together with all Documentation and other materials associated with the Software and all copies of any of the foregoing, or destroy such items, (iv) cease using the Maintenance Services associated with the applicable Software, (v) pay Provider or the applicable Partner all amounts due and payable up to the date of termination and shall not be entitled to any refund, and (vi) give Provider a written certification, within ten (10) days, that Customer, Third Party Users and Clients, as applicable, have complied with all of the foregoing obligations.
   • Survival. Any provision of this Agreement that requires or contemplates continued performance after (i) termination of this Agreement, (ii) a termination or expiration of a License, or (iii) the expiration of a SaaS Term, is enforceable against the other party and their respective successors and assignees notwithstanding such termination or expiration, including, without limitation, the Restrictions, Export, Payment, Taxes, Effect of License Termination, Survival, Warranty Disclaimer, Indemnity, Limitation of Liability, Confidential Information, Compliance Verification, and General sections of this Agreement. Termination of this Agreement or a License shall be without prejudice to any other remedies that the terminating party may have under law, subject to the limitations and exclusions set forth in this Agreement.
9. Export. The Products and Maintenance Services are subject to the export control laws, rules, regulations, restrictions, sanctions and national security controls of the United States, Europe, and other applicable countries and regions ("Export Controls") and each party agrees to abide by the Export Controls. Customer hereby agrees to use the Products and Maintenance Services in accordance with the Export Controls, and shall not Use, export, re-export, sell, lease or otherwise transfer the Products or any copy, portion or direct product of the foregoing in violation of the Export Controls. Customer is solely responsible for obtaining all necessary licenses or authorizations relating to the Use, export, re-export, sale, lease or transfer of the Products and for ensuring compliance with the requirements of such licenses or authorizations.
10. Maintenance Services. If ordered, Maintenance Services are provided in accordance with Provider’s then current support offering set forth on Provider’s Support Site, which describes the Maintenance Services, including support offering levels, severity levels, response times, and contact information. The time period during which Customer is entitled to receive Maintenance Services is a "Maintenance Period."
    
    The support offering is incorporated in this Agreement and subject to change at Provider’s discretion; however, Provider will not materially reduce the level of technical support services provided during a paid support period. As part of the Maintenance Services Provider will (i) make available new releases and corrections of the Software when Provider makes them generally available to its supported customers at no additional license fee, and (ii) provide technical support for issues that are demonstrable in the currently supported release(s) of the Software. Maintenance Services fees are due and payable annually in advance of a support period. Maintenance Services must be purchased by Customer to be provided to Customer and may be purchased in the Order or in a subsequent Order, provided that any period of missed support is subject to additional charges for make-up or back support not previously paid for by Customer.
    
    The Maintenance Period for perpetual Licenses will automatically renew for additional terms of 12 months, at the prices stated on a Maintenance Services renewal Quotation provided by Provider, unless the renewal has been cancelled by either party with at least sixty (60) days prior written notice (email is sufficient). Maintenance Services must be ordered for all copies of each licensed Product and may not be purchased for a subset of licenses of a Product only. The procedure and fees for reinstating Maintenance Services for Software after it has lapsed is posted on the Support Site. Provider’s end-of-life ("EOL") policy, subject to changes in Provider’s discretion, is stated on Provider’s Support Site.
11. Warranties and Remedies.
    • Software Warranty and Remedies. Provider warrants that, during the applicable Warranty Period, the operation of the Software, as provided by Provider, will substantially conform to its Documentation (the "Software Warranty"). For On-Premises Software, the warranty shall be for ninety (90) days following the initial delivery of the Software pursuant to an Order; and for SaaS Software shall be the duration of the SaaS Term (the "Warranty Period").
      
      Provided Customer notifies Provider of any breach of the foregoing warranty within the Warranty Period, Provider shall at its option (i) correct or provide a workaround for reproducible errors in the Software that caused the breach within a reasonable time considering the severity of the error and its effect on Customer or (ii) refund the license fees paid for the applicable nonconforming On-Premises Software in exchange for a return of such nonconforming On-Premises Software or provide a credit of the fees allocable to the period during which the SaaS Software was not operating in substantial conformance with the applicable Documentation. These are Customer’s sole and exclusive remedies and Provider’s sole obligation for any such breach of the Software Warranty.
    • Warranty Exclusions. The warranties set forth in this section shall not apply to any non-conformance (i) that Provider cannot recreate after exercising commercially reasonable efforts to attempt to do so; (ii) caused by misuse of the applicable Product or by using the Product in a manner that is inconsistent with this Agreement or the Documentation; or (iii) arising from the modification of the Product by anyone other than Provider.
    • Warranty Disclaimer. THE EXPRESS WARRANTIES AND REMEDIES SET FORTH IN THIS SECTION OR IN A SIGNED ORDER OR GOVERNING QUOTATION ARE THE ONLY WARRANTIES AND REMEDIES PROVIDED BY PROVIDER HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL OTHER WARRANTIES OR REMEDIES ARE EXCLUDED, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, INTEROPERABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, AND ANY WARRANTIES ARISING FROM USAGE OF TRADE OR COURSE OF DEALING OR PERFORMANCE. PROVIDER DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION OF THE PRODUCTS.
    • High-Risk Disclaimer. THE PRODUCTS ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED OR INTENDED FOR USE AND MAY NOT BE USED IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, WEAPONS SYSTEMS, LIFE SUPPORT MACHINES, OR ANY OTHER POTENTIALLY LIFE CRITICAL USES (COLLECTIVELY, "HIGH RISK ACTIVITIES"). PROVIDER SHALL NOT BE LIABLE FOR ANY CLAIMS BY CUSTOMER IN RESPECT OF OR WHICH RELATE DIRECTLY OR INDIRECTLY TO HIGH-RISK ACTIVITIES.
12. Indemnity.
    1. Provider Software Limited Indemnity. Provider shall indemnify Customer from any claim, suit, action, proceeding brought by a third party (a "Third Party Claim") to the extent it is based on an allegation that the Software directly infringes any patent, copyright, trademark, or other proprietary right enforceable in the country in which Provider has authorized Customer to use the Software, including the country to which the Software is delivered to Customer, or misappropriates a trade secret in such country. Provider shall have no obligation hereunder to indemnify Customer as described under this section against any Third Party Claim resulting from (1) Use of the Software other than as authorized by this Agreement, a Signed Order, or a Governing Quotation; (2) a modification of the Software other than by Provider, (3) Customer’s Use of any release of the Software after Provider has provided a non-infringing update at no charge, or (4) Use of the Software in conjunction with other products, services, or data not supplied by Provider if the infringement would not have occurred but for such use. If, as a result of a Third Party Claim or an injunction, Customer must stop using any Software (the "Infringing Software"), Provider shall at its expense and option either (1) obtain for Customer the right to continue using the Infringing Software, (2) replace the Infringing Software with a functionally equivalent non-infringing product, (3) modify the Infringing Software so that it is non-infringing, or (4) terminate the License for the Infringing Software and (A) for On-Premises Software, accept the return of the Infringing Software and refund the license fee paid for the Infringing Software, pro-rated over a sixty (60) month period from the date of initial delivery of such Software following an Order, or (B) for SaaS Software, discontinue Customer’s right to access and use the Infringing Software and refund the unused prorated portion of any license fees pre-paid by Customer for such Software. This section states Provider’s entire liability and its sole and exclusive indemnification obligations with respect to a Third Party Claim and Infringing Software.
    2. Export Compliance Indemnity. Either party shall indemnify the other from and against a Third Party Claim arising from their own party’s violation of Section 9 (Export).
    3. Customer Data Indemnity. Customer shall indemnify Provider against a Third Party Claim arising from its Customer Data responsibilities under Appendix A- Software as a Service.
    4. Indemnification Obligations. Subject to any limitations on indemnification set forth herein or in an Order, indemnification as set forth in Sections 12 (a) – (c) hereof for a Third Party Claim shall exclusively consist of the following: indemnifying party shall (1) defend or settle the Third Party Claim at its own expense, (2) pay any judgments finally awarded against indemnified party under a Third Party Claim or any amounts assessed against indemnified party in any fines or settlements of a Third Party Claim, and (3) reimburse indemnified party for the reasonable administrative costs or expenses, including without limitation reasonable attorneys’ fees, it necessarily incurs in responding to the Third Party Claim. Indemnifying party’s obligations are conditioned upon indemnified party (i) giving prompt written notice of the Third Party Claim to the indemnifying party, (ii) permitting indemnifying party to retain sole control of the investigation, defense or settlement of the Third Party Claim as long as such settlement shall not include a financial obligation on or admission of liability by indemnified party, and (iii) providing indemnifying party with cooperation and assistance as indemnifying party may reasonably request in connection with the Third Party Claim.
13. Limitation of Liability.
    • EXCLUSION OF DAMAGES. EXCEPT AS OTHERWISE STATED IN SUBSECTION (C) BELOW, IN NO EVENT SHALL CUSTOMER OR ITS AFFILIATES OR PROVIDER, ITS AFFILIATES OR SUPPLIERS BE LIABLE FOR (X) ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND OR (Y) LOSS OF REVENUE, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF BUSINESS, LOSS OF CONTRACTS, LOSS OF GOODWILL OR REPUTATION, LOSS OF ANTICIPATED SAVINGS, LOSS OF, DAMAGE TO OR CORRUPTION OF DATA, FAILURE OF SECURITY MECHANISMS, IN EACH CASE, HOWSOEVER ARISING, WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES.
    • LIABILITY CAP. EXCEPT OTHERWISE STATED IN SUBSECTION (C) BELOW, THE MAXIMUM AGGREGATE AND CUMULATIVE LIABILITY OF CUSTOMER AND ITS AFFILIATES, AND PROVIDER, ITS AFFILIATES AND SUPPLIERS, FOR DAMAGES UNDER THIS AGREEMENT, WHETHER ARISING IN OR FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, SHALL BE THE FEES PAID AND/OR OWED (AS APPLICABLE) BY CUSTOMER OR ITS AFFILIATES FOR THE ON-PREMISES PRODUCTS THAT ARE THE SUBJECT OF THE BREACH. IF NO FEES WERE PAID BY CUSTOMER, THEN PROVIDER’S MAXIMUM LIABILITY SHALL BE ZERO.
      
      FOR MAINTENANCE SERVICES OR A PRODUCT SUBJECT TO RECURRING FEES SUCH AS SAAS SOFTWARE, THE MAXIMUM AGGREGATE AND CUMULATIVE LIABILITY SHALL BE THE ANNUALIZED AMOUNT PAID AND/OR OWED (AS APPLICABLE) FOR SUCH MAINTENANCE SERVICE OR PRODUCT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST INCIDENT GIVING RISE TO THE BREACH.
    • EXCLUSIONS FROM LIABILITY CAP. NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT A PARTY’S LIABILITY FOR: (I) ANY AMOUNTS DUE AND PAYABLE TO PROVIDER UNDER THIS AGREEMENT; (II) ANY BREACH OF THE RESTRICTIONS SECTION; (III) CUSTOMER’S INDEMNITY OBLIGATIONS UNDER THE INDEMNITY SECTION; OR (IV) ANY LIABILITY TO THE EXTENT LIABILITY MAY NOT BE EXCLUDED OR LIMITED AS A MATTER OF APPLICABLE LAW.
      
      The waivers and limitations in this Limitation of Liability section apply regardless of the form of action, whether in contract, tort (including negligence), strict liability, breach of statutory duty or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose and even if a party has been advised of the possibility of such liabilities or failures.
14. Confidential Information
    • Definition. "Confidential Information" means information or materials disclosed by one party ( "Disclosing Party") to the other party (“Receiving Party”) that are not generally available to the public and which, due to their character and nature, a reasonable person under like circumstances would treat as confidential, including, without limitation, financial, marketing, and pricing information, trade secrets, know-how, proprietary tools, knowledge and methodologies, the Software (in source code and/or object code form), information or benchmark test results regarding the functionality and performance of the Software, any Software license keys provided to Customer, and the terms and conditions of this Agreement.
      
      Confidential Information shall not include information or materials that (i) are generally known to the public, other than as a result of an unpermitted disclosure by the Receiving Party after the Effective Date; (ii) were known to the Receiving Party without an obligation of confidentiality prior to receipt from the Disclosing Party; (iii) the Receiving Party lawfully received from a third party without that third party’s breach of agreement or obligation of trust; or (iv) are or were independently developed by the Receiving Party without access to or use of the Disclosing Party’s Confidential Information
    • Obligations. The Receiving Party shall (i) not disclose the Disclosing Party’s Confidential Information to any third party, except as permitted in subsection (c) below, and (ii) protect the Disclosing Party’s Confidential Information from unauthorized use or disclosure by exercising at least the same degree of care it uses to protect its own similar information, but in no event less than a reasonable degree of care. The Receiving Party shall promptly notify the Disclosing Party of any known unauthorized use or disclosure of the Disclosing Party’s Confidential Information and will cooperate with the Disclosing Party in any litigation brought by the Disclosing Party against third parties to protect its proprietary rights. For the avoidance of doubt, this section shall apply to all disclosures of the parties’ Confidential Information as of the Effective Date, whether or not specifically arising from a party’s performance under this Agreement.
    • Permitted Disclosures. Notwithstanding the foregoing, the Receiving Party may disclose the Disclosing Party’s Confidential Information without the Disclosing Party’s prior written consent to any of its Affiliates, directors, officers, employees, consultants, contractors or representatives (collectively, the "Representatives"), but only to those Representatives that (i) have a “need to know” in order to carry out the purposes of this Agreement or to provide professional advice in connection with this Agreement, (ii) are legally bound to the Receiving Party to protect information such as the Confidential Information under terms at least as restrictive as those provided herein, and (iii) have been informed by the Receiving Party of the confidential nature of the Confidential Information and the requirements regarding restrictions on disclosure and use as set forth in this section. The Receiving Party shall be liable to the Disclosing Party for the acts or omissions of any Representatives to which it discloses Confidential Information which, if done by the Receiving Party, would be a breach of this Agreement. Additionally, it shall not be a breach of this section for the Receiving Party to disclose the Disclosing Party’s Confidential Information as may be required by operation of law or legal process, provided that the Receiving Party provides prior notice of such disclosure to the Disclosing Party unless expressly prohibited from doing so by a court, arbitration panel or other legal authority of competent jurisdiction.
15. Data Protection.
    • Data Privacy. Each party shall comply with all laws and regulations applicable to the processing of personal data in connection with any transactions related to this Agreement, such as but not limited to, as applicable, the California Consumer Privacy Act as amended by the California Privacy Rights Act, the General Data Protection Regulation, or the UK Data Protection Act, including any implementation act(s) related thereto, or any other applicable laws regulations and other legal requirements related to (a) privacy and data security, and (b) the use, collection, retention, storage, security, disclosure, transfer, disposal and other processing of personal data ("Privacy Laws"). Each party is responsible for obtaining any necessary authorizations and consents prior to disclosing personal data to the other party or to any third party. The terms “controller”, “personal data” and “processing” used in this section shall have the meaning set out in the applicable Privacy Laws. Either party may use personal data consisting of ordinary business contact data (e.g., name, phone number, email address, etc.) in its capacity as a controller strictly in accordance with applicable Privacy Laws in the normal course of business but only for the purpose of administration of the party’s business relationship and performance of their obligations under this Agreement.
    • General Security. Customer will maintain industry standard security controls in its software and systems environments on which the Software is installed and Used.
    • Customer’s Data. Customer remains responsible for any data and the contents of any database on, or for, which the Software may be Used, and the selection and implementation of procedures and controls regarding access, security, encryption, use, and transmission of data, and backup and recovery of any data. Customer will not send or provide Provider with any Personal Data resident on Customer’s systems unless expressly set forth in the Order, and if so required by such Order, will encrypt such data and limit such data to only that which is necessary for the purpose stated in the Order. Customer will be responsible for reasonable costs and other charges Provider may incur relating to any such data provided to Provider (or to which Provider was given access) when such provision or access was not set forth in the Order.
16. License Verification.
    • Reporting. Customer shall maintain and use systems and procedures that allow Customer to accurately and completely track, document, and report Customer’s Use of each Product in the quantities and versions used in compliance with the Product Terms and this Agreement and allow Provider to audit the same (an "Audit"). Audits may be performed by Provider or its designated agents. Provider shall provide at least ten (10) days prior written notice to Customer before the start of an Audit and will conduct the Audit during normal business hours. Customer shall provide and will require its Clients and Third Party Users to provide their full cooperation and assistance with such audit and provide access to the applicable records and computers. Provider may employ automatic monitoring and reporting tools in the Software that reports usage to Provider, and Customer hereby consents to the use of such tools, and should such tool require the installation and execution by Customer, Customer hereby agrees to install and execute such tool on the written request of Provider.
    • Confidentiality. Provider agrees that any Customer information gathered during the performance of an audit shall be Customer’s Confidential Information under this Agreement. Customer agrees that it will not require any further confidentiality or nondisclosure agreements to be executed by Provider or its designated agents in connection with the Audit. Prior to the Audit, Provider shall ensure that its agents are subject to confidentiality obligations at least as protective as those set forth herein.
    • Excess Use. If an Audit indicates that Customer’s installations, deployment, access of or provision of access to, or operation of each Product exceeds the quantity of licenses owned or is otherwise not in compliance with the scope of the license granted ("Overuse"), then Customer shall pay for all Overuse quantities at Provider’s then current list price plus any interest on past due amounts and prior Maintenance Service fees. If the Overuse is more than five percent (5%) of Customer’s license entitlements, then Customer shall reimburse Provider for Provider’s reasonable cost of performing the Audit. Strict performance by Customer in accordance with this provision is an express condition to all or any licenses granted in this Agreement.
17. General.
    • Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any conflict of laws principles that would require the application of laws of a different state. Any action seeking enforcement of this Agreement or any provision hereof shall be brought exclusively in the state or federal courts located in the State of California. Each party hereby agrees to submit to the jurisdiction of such courts. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act (UCITA) shall apply to this Agreement, regardless of the states in which the parties do business or are incorporated.
    • Assignment. Except as otherwise set forth herein, Customer shall not, in whole or part, assign or transfer any part of this Agreement, the Licenses granted under this Agreement or any other rights, interest or obligations hereunder, whether voluntarily, by contract, by operation of law or by merger (whether that party is the surviving or disappearing entity), stock or asset sale, consolidation, dissolution, through government action or order, or otherwise without the prior written consent of Provider. Any attempted transfer or assignment by Customer that is not permitted by this Agreement shall be null and void.
    • Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, such provision will be enforced to the maximum extent permissible by law to affect the intent of the parties and the remaining provisions of this Agreement will remain in full force and effect. Notwithstanding the foregoing, the terms of this Agreement that limit, disclaim, or exclude warranties, remedies or damages are intended by the parties to be independent and remain in effect despite any failure or unenforceability thereof. The parties have relied on the limitations and exclusions set forth in this Agreement in determining whether to enter into it.
    • Use by U.S. Government.The Software is a "commercial item" under FAR 12.201. Consistent with FAR section 12.212 and DFARS section 227.7202, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Software or Documentation by the U.S. government is prohibited except as expressly permitted by the terms of this Agreement. In addition, when Customer is a U.S. government entity, Section 12(a) and the Injunctive Relief Section of this Agreement shall not be applicable.
    • Notices. All notices provided hereunder shall be in writing and addressed to the legal department of the respective party or to such other address as may be specified in an Order or in writing by either of the parties to the other in accordance with this section. Except as may be expressly permitted herein, notices may be delivered personally, sent to an email address specified by the receiving party, sent via a nationally recognized courier or overnight delivery service, or mailed by first class mail, postage prepaid. All notices, requests, demands or communications shall be deemed effective upon personal delivery or, if sent by mail, four (4) days following deposit in the mail in accordance with this paragraph. Provider may also send operational notices via the SaaS Software, Documentation, or make available on the Support Site. Unless otherwise specified by Provider in writing, any notices sent to Provider must also be copied to legal@persistent.com.
    • Disclosure of Customer Status. Upon written consent of Customer, Provider may include Customer in its listing of customers and announce Customer's selection of Provider in its marketing communications.
    • Waiver. Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described therein. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
    • Injunctive Relief. Each party acknowledges and agrees that in the event of a material breach of this Agreement, including but not limited to a breach of the Software License, Restrictions or Confidential Information Sections of this Agreement, the non-breaching party shall be entitled to seek immediate injunctive relief, without limiting its other rights and remedies.
    • Force Majeure. Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, pandemics, and third party utility or Internet failures. For added certainty, this section shall not operate to change, delete, or modify any of the parties’ obligations under this Agreement (e.g., payment), but rather only to excuse a delay in the performance of such obligations.
    • Headings. Headings in this Agreement are for convenience only and do not affect the meaning or interpretation of this Agreement. This Agreement will not be construed either in favor of or against one party or the other, but rather in accordance with its fair meaning. When the term "including" is used in this Agreement it will be construed in each case to mean "including, but not limited to."
    • Legal Fees. If any legal action is brought to enforce obligations related to payment, compliance verification, or a violation of intellectual property rights, the prevailing party shall be entitled to recover its reasonable attorneys’ fees, full costs and other collection expenses, in addition to any other relief it may be awarded.
    • Entire Agreement. This Agreement contains the total agreement between the two parties regarding the subject matter covered herein and supersedes any other agreements, written, oral, expressed, or implied, including any confidentiality agreement between the parties. Unless there is a prevailing signed Agreement between the Parties, all Orders are governed solely and exclusively by this Agreement and any additional or varying terms stated on a Signed Order or a Governing Quotation. In the event of a conflict between the terms of this Agreement and the terms contained in a Signed Order or Governing Quotation, the terms of a Signed Order or Governing Quotation shall control. For all other Orders, the terms of this Agreement shall exclusively control. Neither this Agreement, nor an Order, may be modified or amended except by a written agreement executed by a duly authorized representative of each party. No other act, document, usage or custom shall be deemed to amend or modify this Agreement or an Order and Customer agrees that all additional or inconsistent terms that may be contained in any purchase order or other documentation submitted by Customer in connection with an Order are not applicable. Customer agrees that all of Customer’s licenses for such Product, regardless of license date, will be governed by the version of the Software Transaction Agreement and applicable Product Terms in effect on the date of the most recent license purchase.

1. On-Premises Software. If Software is delivered to Customer for Customer’s installation and use on its own equipment ("On-Premises Software"), the License shall include the right to (i) make a reasonable number of additional copies of the On-Premises Software to be used solely for non-productive archival or passive disaster recovery purposes, provided such copies are kept in a secure location, not placed in or on any public or external network, and are not used for production purposes unless the associated primary copy of the On-Premises Software is no longer being used for production purposes, and (ii) make and use copies of the Documentation as reasonably necessary to support Customer’s authorized users in their Use of the On-Premises Software. Each License for On-Premises Software shall only be installed by Customer in the country in which the On-Premises Software is initially delivered to Customer. Any such copies made pursuant to this section are subject to the same de-installation, destruction, and other restrictions applicable to the On-Premises Software.
2. Software as a Service. If an Order provides Customer with a right to access and use Software installed on equipment hosted by Provider or its suppliers ("SaaS Software"), the License for such SaaS Software shall be granted for the duration of the term stated in the Order (the "SaaS Term"), as such SaaS Term may be extended by automatic or agreed upon renewals as stated in the Order. If any item of On-Premises Software to be installed on Customer’s equipment is provided in connection with SaaS Software, the License duration for such Software shall be for the corresponding SaaS Term, and Customer shall promptly install any updates to such Software as may be provided by Provider. "SaaS Environment" means the systems to which Customer is provided access in connection with its use of the SaaS Software.
   • Availability. Provider will make commercially reasonable efforts to make the SaaS Software available twenty-four hours a day, seven days a week except for scheduled maintenance, the installation of updates, those factors that are beyond the reasonable control of Provider, Customer’s failure to meet any minimum system requirements communicated to Customer by Provider, and any breach of the Agreement or this Addendum by Customer that impacts the availability of the SaaS Software. Provider shall provide reasonable advance notice to Customer of any scheduled maintenance. Provider can limit or suspend Customer’s access to the SaaS Software if it is sufficiently probable that the continued use of the SaaS Software may result in harm to the SaaS Software, other Provider customers, or the rights of third parties in such a way that immediate action is required to avoid damages or Customer is in breach of the Agreement. If circumstances allow and if reasonably practicable, Provider will give Customer notice so that Customer may seek to promptly avoid the issue and avoid suspension.
   • Customer Data. Customer represents and warrants that it (i) has all rights necessary to use any data, content or materials that Customer (including its users) submits or includes from third-party platforms to the SaaS Environment ("Customer Data") without violating third-party intellectual property, privacy or other rights and grants Provider the right to access, transmit, process and use Customer Data to provide and support the SaaS Software as set out in the Agreement, and (ii) will use industry-standard measures to avoid introducing viruses, malicious code or similar harmful materials into the SaaS Environment. Between the parties, Customer is responsible for the content and accuracy of Customer Data.
   • Data Processing. If Provider processes any personal data on behalf of the Customer through the Customer’s use of the SaaS Software then Provider’s standard data processing addendum on the Support Site, or as mutually agreed in writing, will apply to such data processing and will become a part of this Agreement. For clarity, any data protection or security agreement relating to data processed under this Agreement will always be considered a part of this Agreement and not a stand-alone agreement.
   • Cooperation. Customer shall cooperate with Provider’s reasonable investigation of SaaS Environment outages, security issues, and any suspected breach of this Software as a Service section.
3. MSP License. If an Order indicates that Software is to be used by Customer as a managed service provider, Customer shall be granted a License to use such Software and the associated Documentation to provide Management Services (an "MSP License"). "Management Services" include, without limitation, application, operating system, and database implementation, performance tuning, and maintenance services provided by Customer to its customers (each, a "Client" or an "MSP Client"). If an Order indicates that an MSP License will be used to support a specific Client, Customer may not Use the MSP License to support any Client other than the Client named on the Order.
   • Customer Responsibilities.Customer shall ensure that (i) each Client only uses the Software and Documentation as part of the Management Services provided to it by Customer, (ii) such use is subject to the restrictions and limitations contained in this Agreement, including, but not limited to those in the Restrictions and Export sections of this Agreement, and the applicable Order, and (iii) each Client cooperates with Provider during any compliance review that may be conducted by Provider or its designated agent. Customer agrees that the acts and omissions of its Clients in connection with their use of the Software and Documentation shall be deemed the acts and omissions of Customer.
   • Client Support. Customer shall be solely responsible for supporting its Client, including but not limited to, conducting all activities required to install the Software and for providing any training to its Client and any system integrators regarding the installation, use and operation of the Software. Customer will provide Management Services to its Client in a manner that does not degrade the goodwill and reputation of Provider or the Software and will not undertake any action that would impair or disrupt Provider's relationship with its customers or potential customers. Customer will make no representations or warranties related to the Software in excess of Provider’s representations or warranties contained in this Agreement. At the conclusion of any Management Services engagement with a Client, Customer shall promptly remove any Software installed on its Client’s computer equipment or require the Client to do the same.
   • Perpetual MSP License Assignment.In the event Customer acquires a perpetual MSP License, Customer may assign the Software to its Client for the Clients’ internal use, provided that Customer obtains Provider’s prior written consent for the assignment, and the Client agrees to be bound by Provider’s then current license agreement. Customer understands and agrees that Customer shall have no right to charge a fee to its Client(s) for such an assignment and that following such an assignment, Customer shall have no further rights to use the assigned Software, and the applicable License shall terminate in accordance with the terms of this Agreement. Any attempted transfer or assignment of the Software to a Client in violation of the foregoing shall be null and void.
4. Evaluation License. If an Order indicates that Software is to be used by Customer for evaluation purposes, or if Software is otherwise obtained from Provider for evaluation purposes, Customer shall be granted a License to Use such Software and the associated Documentation solely for Customer’s own non-production, internal evaluation purposes (an "Evaluation License"). Each Evaluation License shall be granted for an evaluation period of up to thirty (30) days from the date of delivery of the On-Premises Software or from the date that access is granted to the SaaS Software, plus any extensions granted by Provider in writing (the "Evaluation Period"). There is no fee for an Evaluation License during the Evaluation Period, however, Customer is responsible for any applicable taxes which may be incurred, any charges if Customer wishes delivery by any method other than electronic delivery, and any fees which may be associated with Use beyond the scope permitted herein. Customer will only be granted one Evaluation License per release of any item of Software. Notwithstanding anything otherwise set forth in this Agreement, Customer understands and agrees that Evaluation Licenses are provided "AS IS" and that Provider does not provide warranties, indemnification, or Maintenance Services for Evaluation Licenses. Customer hereby grants Provider a perpetual, irrevocable, worldwide license to use any Feedback Customer communicates to Provider, without compensation, without any obligation to report on such use, and without any other restriction. Provider’s rights granted in the previous sentence include, without limitation, the right to exploit Feedback in any and every way, as well as the right to grant sublicenses under copyright, patent, and any other form of intellectual property. Notwithstanding Section 14 (Confidential Information), Feedback will not be considered Customer’s Confidential Information or its trade secret.
5. Use by Third Parties. Customer may allow its services vendors, outsourcing providers, and contractors (each, a "Third Party User") to Use the Software and Documentation subject to Customer’s restrictions herein, and provided that Customer ensures that (i) the Third Party User’s access to or use of the Software and Documentation is subject to the restrictions and limitations contained in this Agreement, including, but not limited to those in the Export Section, and the applicable Order(s), (ii) the Third Party User cooperates with Provider during any compliance review that may be conducted by Provider or its designated agent, and (iii) the Third Party User promptly removes any Software installed on its computer equipment upon the completion of the Third Party’s need to access or use the Software as permitted by this Section. Customer agrees that the acts and omissions of its Third Party Users related to this Agreement, the Software, and Orders shall be deemed the acts and omissions of Customer.
6. Open Source. Software distributed to Customer (if any) may include third party open source software (“Open Source”) as listed in the Documentation or by Provider upon request. If Customer elects to use the Open Source on a stand-alone basis, that use is subject to the applicable Open Source license and not this Agreement, and Customer must procure the Open Source directly from the Open Source repository and not Provider for such stand-alone use.