Buoyant Enterprise for Linkerd
License-Only End User License Agreement
THIS LICENSE-ONLY END USER LICENSE AGREEMENT (THIS “AGREEMENT”) IS A BINDING AGREEMENT BY AND BETWEEN YOU (EITHER AS AN INDIVIDUAL OR AN ENTITY, IF YOU ARE ACTING WITHIN THE SCOPE OF YOUR EMPLOYMENT) (“YOU” OR “CUSTOMER”) AND BUOYANT, INC., A DELAWARE CORPORATION WITH HEADQUARTERS AT 548 MARKET ST, PMB 43048, SAN FRANCISCO, CA 94104 (“BUOYANT” OR “US”). THE AGREEMENT INCLUDES ALL ATTACHMENTS AND ADDENDA TO IT AND WILL BE INCORPORATED INTO ANY ORDER FORM THAT REFERENCES IT (YOUR “ORDER”). 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 ANY REFERENCE TO “YOU”, “YOUR” OR “CUSTOMER” SHALL REFER TO SUCH ENTITY. YOU AND BUOYANT ARE SOMETIMES REFERRED TO HEREIN COLLECTIVELY AS THE "PARTIES" OR INDIVIDUALLY AS A "PARTY."
IMPORTANT-READ CAREFULLY: BY CLICKING ON THE CHECKBOX THAT DEMONSTRATES ACCEPTANCE OF THIS AGREEMENT, OR BY ACCESSING, DOWNLOADING, INSTALLING, OR USING THE SOFTWARE (“ACCEPTANCE”), YOU (THE INDIVIDUAL OR LEGAL ENTITY) AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT OR YOU DO NOT HAVE THE AUTHORITY TO BIND YOUR EMPLOYER, YOU MUST NOT ACCESS, INSTALL THE AGENT, OR USE THE SOFTWARE.
1. Definitions
Capitalized terms not otherwise defined have the meanings set forth in this Section 1:
1.1 "Documentation" means Buoyant’s end-user technical documentation for the Software.
1.7 “Software” means the object code version of Buoyant's proprietary service mesh software, together with any Updates provided to You by Buoyant pursuant to this Agreement.
1.8 “Update(s)” means any update, upgrade, release or other adaptation or modification or replacement of the Software that Buoyant may provide from time to time, in its sole discretion, which may contain, among other things, error corrections, enhancements, improvements or other changes to the Software.
2. Scope
This Agreement governs the terms and conditions under which You may access, download, install, use and test the Software. If You have purchased an Enterprise Plan, or if You have a separate agreement governing Your use of the Software, this agreement does not apply to Your use of the Software provided under the Enterprise Plan or such other agreement.
3. Delivery
As between the Parties, You are responsible for installing the Software in accordance with the Documentation.
4. Software
4.1 License. Subject to the terms and conditions of this Agreement and Your payment of all fees, Buoyant hereby grants You, during the applicable Term (as defined below), a non-transferable, non-sublicensable, non-exclusive license to install, copy, and use the Software on systems under Your control in accordance with the Documentation and other instructions supplied by Buoyant, solely for Your internal business purposes only. You may make a reasonable number of copies of the Software solely for testing, disaster recovery or archival purposes. The Software (and any copies thereof) will remain the exclusive property of Buoyant.
4.2 Open Source. The Software may incorporate third-party open source software (“OSS”), as listed in the Documentation. To the extent required by the OSS license, that license will apply to the OSS on a stand-alone basis instead of this Agreement.
4.3 Free Use. If You receive access to the Software or Software features on a free, evaluation, or trial basis (“Free Use”), then notwithstanding anything else in this Agreement, THE SOFTWARE IS PROVIDED “AS IS”, AND BUOYANT PROVIDES NO WARRANTY, INDEMNITY OR SUPPORT OF ANY KIND (WHETHER EXPRESS OR IMPLIED) WITH RESPECT TO SUCH FREE USE, AND ITS LIABILITY WITH RESPECT TO SUCH FREE USE WILL NOT EXCEED $50.
4.4 License Restrictions. You acknowledge that the Software and its structure, organization, and source code are copyrighted and constitute Confidential Information and valuable trade secrets of Buoyant and its suppliers. Accordingly, as conditions on Your license rights, You will not, and will not permit anyone else to, do any of the following: (i) provide access to, distribute, sell or sublicense the Software to a third party, (ii) use the Software on behalf of, or to provide any product or service to, third parties, (iii) use the Software to develop a similar or competing product or service, (iv) use the Software for any activities where use of failure of the Software could lead to death, personal injury or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles or air traffic control (collectively, “High Risk Activities”), (v) reverse engineer, decompile or disassemble the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software, except to the extent expressly permitted by applicable law (and then only with prior notice to Buoyant), (vi) modify or create derivative works of the Software, (vii) remove or obscure any product identification or proprietary notices in the Software or (viii) publish benchmarks or performance information about the Software.
4.5 Updates. During the applicable Term, Buoyant will make Updates to the Software available to You. If You download or install an Update, such Update will be deemed a part of the Software. Updates may be subject to additional or different terms than those set forth herein, and You may be required to agree to such terms before being permitted to download or install an Update. Any such additional or different terms will be deemed to amend the terms of this Agreement upon Your acceptance thereof.
4.6 Support. Nothing in this Agreement will obligate Buoyant to provide support services to You of any kind with respect to the Software.
4.7 Users. Only Customer’s or its affiliates’ employees or contractors that Customer authorizes to use the Software on its behalf (collectively, “Users”) may access or use the Software. Customer is responsible for its Users’ compliance with this Agreement.
4.8 Usage Data. Buoyant may collect technical logs, data and other learnings about Your use of the Software (collectively, “Usage Data”) through the Software. Buoyant may collect Usage Data and use it to operate, improve and support the Software and for other lawful business practices, such as analytics, benchmarking and reports. However, Buoyant will not disclose Usage Data externally, including in benchmarks or reports, unless it has been (a) de-identified so that it does not individually identify Customer, its Users or any other person and (b) aggregated with usage data across other Buoyant customers.
4.9 Your Obligations. You will: (i) immediately notify Buoyant of any unauthorized access, use, copying, distribution, or other suspected security breach in connection with the Software; (ii) monitor the Software and ensure that it is used only in compliance with the terms of this Agreement; (iii) set up, maintain, and operate Your computer networks, systems, and hardware in, through, or on which though the Software operate in good repair and in accordance with the Documentation; and (iv) cooperate and assist Buoyant as reasonably requested to enable Buoyant perform its obligations under the Agreement. You shall be responsible and liable for any and all non-compliance with this Agreement by You or by any person or entity who obtains access to the Software through You. You shall be exclusively responsible for the supervision, management, and control of Your use of the Software, including, but not limited to (a) assuring proper configuration of equipment or devices; (b) establishing adequate operating methods; and (c) implementing procedures sufficient to satisfy its obligations for security under this Agreement, including appropriate action between You and Your Users to prevent misuse, unauthorized copying, modification, or disclosure of the Software.
4.10 Third-Party Platforms. Customer may choose to use the Software with third-party platforms, add-ons, services or other products not provided by Buoyant (“Third-Party Platforms”). Use of Third-Party Platforms is subject to Customer’s agreement with the relevant provider and not this Agreement, and may enable data exchange between the Software and Third-Party Platforms. Buoyant does not control and has no liability for Third-Party Platforms, including their security, functionality, operation, availability or interoperability or how the Third-Party Platforms use data received from the Software.
5. Intellectual Property Rights
5.1 Ownership of Buoyant Property. You acknowledge that the Software is licensed and not sold to You. Buoyant does not grant You any rights or licenses not expressly set out in this Agreement, and Buoyant and its licensors retain all intellectual property and other rights in and to the Software, Documentation, and related Buoyant technology, templates, formats and dashboard, including any modifications or improvements to these items made by or on behalf of Buoyant.
5.2 Feedback. Any ideas, suggestions, guidance or other information shared by You with Buoyant which is derived from or related to the Software shall be collectively deemed “Feedback”. Buoyant may freely use such Feedback without feedback or obligation.
6. Fees, Taxes, & Payment Terms
6.1 Fees. Except as otherwise agreed by the Parties in writing, You will pay Buoyant the fees for the Software (“Fees”), as specified on the Pricing Page (available at https://buoyant.io/pricing or such other URL that Buoyant may specify from time to time) (the “Pricing Page”). Unless otherwise agreed by Buoyant in writing, Fees will be due in advance, provided that Overages will be paid in arrears. Fees for renewal Terms will be at Buoyant’s then-current rates. Late payments are subject to a service charge of 1.5% per month, or the maximum amount allowed by applicable law, whichever is less, plus all costs of collection efforts incurred, including reasonable attorneys’ fees and court costs. All Fees are non-refundable except as set out in this Agreement. You will be responsible for any sales, sue, GST, value-added, withholding or similar taxes or levies that apply, whether domestic or foreign (collectively, “Taxes”) other than Buoyant’s income tax. Fees are exclusive of Taxes.
6.2 Reporting and Overages. You agree to promptly report to Buoyant any usage of the Software in excess of the usage for which You have paid Fees, and agree to promptly pay all Fees applicable to such excess usage (“Overages”). The Software may include tracking and monitoring features designed to help verify Your usage. In addition, promptly upon Buoyant’s request, but no more than twice (2x) per year, You shall provide Buoyant with a report via electronic means with confirmation of the applicable usage metrics over the reporting period.
6.3 Payment. Unless otherwise agreed in writing by Buoyant, all amounts invoiced under this Agreement will be due within 30 days of the date of Buoyant’s invoice. If You choose to pay by credit card, You hereby authorized Buoyant and its third party payment processors to charge Your credit card for amounts due hereunder.
6.4 Audit. Buoyant or its nominee (including its accountants and auditors) may, on reasonable request, inspect and audit Your use of the Software and compliance with this Agreement at any time during the Term and for one (1) year following the expiration or termination. All such audits will be conducted during regular business hours, and no more frequently than once in any twelve (12) month period. You shall make available all such books, records, equipment, systems, information and personnel, and provide such cooperation and assistance, as may reasonably be requested with respect to such audit. Buoyant will only examine information directly related to Your use of the Software and compliance with this Agreement. If the audit determines that You have incurred an unreported Overage of more than 5% of the Fees paid for the same period, You shall pay Buoyant its reasonable costs in conducting the audit.
7. Representations and Warranties; Warranty Disclaimer.
7.1 Mutual Representations and Warranties. Each Party represents and warrants that: (i) it has the right to enter into this Agreement and doing so will not interfere with its contractual obligations to any third party; (ii) the executed Agreement shall constitute a valid binding obligation on it; and (iii) it will comply with all applicable law in performing its obligations under this Agreement.
7.2 Limited Software Warranty. Subject to the warranty exclusions set forth herein, Buoyant warrants to You that the Software will perform materially as described in the Documentation during the Term when installed, operated and used in accordance with the Documentation and the terms and conditions of this Agreement. To make a valid warranty claim under this Section 7.2, You must provide Buoyant with written notice of the breach within thirty (30) days of date on which the breach occurred. If You notify Buoyant of a breach of the limited warranty set forth in this Section 7.2 within such thirty (30) day period, Buoyant will, at its expense, as Your sole and exclusive remedy for breach of such warranty, use commercially reasonable efforts to correct or replace the Software with functionally equivalent software, and if Buoyant fails to correct the breach within thirty (30) days of its receipt of notice of the nonconformity, You shall have the option to terminate the affected Order, and in the event of such a termination, Buoyant shall provide You with a pro-rata refund of any prepaid fees paid for the Software representing the period of the Term post-termination.
7.3 Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTIES PROVIDED IN THIS AGREEMENT AND ANY STATUTORY WARRANTY REQUIREMENTS WHICH MAY NOT BE LIMITED OR EXCLUDED, THE SOFTWARE IS PROVIDED HEREUNDER “AS IS”, AND BUOYANT MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY REGARDING OR RELATING TO THE SOFTWARE PROVIDED TO YOU UNDER THIS AGREEMENT. BUOYANT DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE WILL BE SECURE OR FREE OF ANY INTERRUPTIONS, DELAYS, OMISSION OR ERRORS. THE SOFTWARE MAY BE SUBJECT TO LIMITATIONS, DELAY AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. BUOYANT IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR LOSS OF CONTENT OR DAMAGES RESULTING THEREFROM. THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND ALL SUCH WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.
8. Term and Termination
8.1 Term. This Agreement shall begin upon Acceptance, and remain effective until termination in accordance with the terms hereof, or until the last day of the Your subscription to the Software, whichever occurs earlier. Your subscription to the Software will begin upon Acceptance and continue for the subscription period specified on the Pricing Page (or if none, monthly) (the “Term”). Your subscription shall automatically renew for successive Terms of equal length unless either Party gives the other Party written notice of its intent not to renew at least 30 days prior to the end of the then-current Term.
8.2 Termination. Either Party may terminate this Agreement if the other Party breaches this Agreement and does not cure such breach within thirty (30) days after receiving written thereof. Buoyant may terminate this Agreement immediately (x) for fraud, misrepresentation or other misconduct, (y) if You fail to pay any amount when due hereunder, and such failure continues more than thirty (30) days after Buoyant’s delivery of written notice thereof; or (z) You breach any of Your obligations under Section 4 (License), 5 (Intellectual Property Rights) or 11 (Confidentiality). This Agreement may be terminated at any time by either Party upon written notice, effective immediately, if the other Party: (i) becomes insolvent or is generally unable to pay its debts as they become due; or (ii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency applicable law which is not dismissed within 60 days. Upon expiration or termination of this Agreement (a) any amounts owed to Buoyant under this Agreement before such termination or expiration will be immediately due and payable; (b) all licenses granted will terminate and (c) You shall immediately cease use of the Software and delete all copies the Software, and all Buoyant Confidential Information and data (including all copies and extracts of thereof) then in Your possession or control together with any and all documents, notes and other materials regarding the Software, and certify Your compliance with the foregoing to Buoyant in a signed writing.
8.3 Survival. Upon expiration or termination hereof for any reason, the terms of the following sections shall survive: 1 (Definitions), 2 (Scope), 4.4 (License Restrictions), 4.8 (Usage Data), 5 (Intellectual Property Rights), 6 (Fees, Taxes, & Payment Terms), 8.2 (Termination), this 8.3 (Survival), 9 (Indemnification), 10 (Limitation of Liability), 11 (Confidentiality), and 12 (General).
9. Indemnification
9.1 Customer Indemnity. You agree to defend Buoyant from and against all third-party claims, lawsuits, or other proceedings (“Claim”) arising out of or relating to (i) Your use of the Software in a manner not permitted by this Agreement, not permitted by Buoyant, or not in conformance with the Documentation, (ii) the acts or omissions of You, Your employees, and agents and all persons or entities who have access through You to the Software, or (iii) relating to an infringement of any right resulting in any way from the use of the Software with other software or materials not licensed to You by or not approved by Buoyant, and will indemnify and hold harmless Buoyant against any damages or costs awarded against Buoyant (including reasonable attorneys’ fees) or agreed in settlement by You resulting from such Claim.
9.2 Buoyant Indemnity. Buoyant will defend You from and against all third-party Claims alleging that the Software, as delivered under this Agreement and used within the scope of this Agreement, Buoyant’s instructions, and the Documentation, directly infringes any United States patent or copyright, or misappropriates any trade secret, and will indemnify and hold You harmless against any damages or costs awarded against You (including reasonable attorneys’ fees) or agreed in settlement by Buoyant resulting from the Claim. The foregoing duty to defend and indemnify does not apply to the extent arising out of or relating to any: (i) open source components or Third-Party Platforms; (ii) modification of the Software by You or a third party; (iii) failure to implement any Update or replacement of the Software made available to You by Buoyant; (iv) use of the Software other than in compliance with the Documentation, the Agreement or Buoyant’s written instructions; (v) use of the Software in combination with any Customer or third party software, system, hardware or data, or (vi) Free Use. If the Software is, or in Buoyant’s opinion is likely to be or is claimed to infringe, misappropriate or otherwise violate any third party intellectual property right, Buoyant may, at its option and sole cost and expense: (x) obtain the right for You to continue to use the Software as contemplated by this Agreement; (ii) modify or replace the Software, in whole or in part, while providing materially equivalent functionality; or (iii) if the remedies set forth above are not available on commercially reasonable terms, terminate this Agreement upon written notice to You, and provide You with a pro-rata refund of the prepaid fees representing the period of the Term post-termination.
9.3 Indemnification Procedure. The indemnifying party’s obligations in this Section 9 are subject to receiving (a) prompt notice of the claim, (b) the exclusive right to control and direct the investigation, defense and settlement of the claim and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party’s prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the Software, when Buoyant is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.
9.4 Sole Remedy. THIS SECTION 9 SETS FORTH YOUR SOLE REMEDIES AND BUOYANT’S SOLE LIABILITY FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THE SOFTWARE AND/OR DOCUMENTATION INFRINGE, MISAPPROPRIATE OR OTHERWISE VIOLATE ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
10. Limitation of Liability
10.1 Cap on Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BUOYANT’S TOTAL AGGREGATE LIABILITY TO YOU ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, AND REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES PAID BY YOU FOR THE SOFTWARE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY.
10.2 Indirect Damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BUOYANT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF BUSINESS REVENUE, LOSS OF CONTENT, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY CLAIM OR DEMAND BY ANY OTHER PARTY, HOWEVER CAUSED AND (TO THE FULLEST EXTENT PERMITTED BY LAW) UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Confidentiality
11.1 Definition. “Confidential Information” means information disclosed to the receiving party under this Agreement that is designated by the disclosing party as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Buoyant’s Confidential Information includes the terms and conditions of this Agreement, the Software and any technical or performance information about the Software.
11.2 Obligations. As receiving party, each party will (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. The receiving party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for Buoyant, its subcontractors), provided it remains responsible for their compliance with this Section 11 and they are bound to confidentiality obligations no less protective than this Section 11.
11.3 Exclusions. These confidentiality obligations do not apply to information that the receiving party can document (a) is or becomes public knowledge through no fault of the receiving party, (b) it rightfully knew or possessed prior to receipt under this Agreement, (c) it rightfully received from a third party without breach of confidentiality obligations or (d) it independently developed without using the disclosing party’s Confidential Information. The receiving party may disclose Confidential Information if required by applicable law, subpoena or court order, provided (if permitted by applicable law) it notifies the disclosing party in advance and cooperates in any effort to obtain confidential treatment.
11.4 Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 11.
12. General
12.1 Force Majeure. In no event will Buoyant be liable or responsible to You, or be deemed to have breached this Agreement, for any failure or delay in performing under this Agreement (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond Buoyant’s reasonable control, including acts of God, flood, fire, earthquake or explosion, pandemic, epidemic or other public health crisis, war, terrorism, export law, power or telecommunications failure.
12.2 Publicity. Neither Party will issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other Party’s trademarks, service marks, trade names, logos, domain names or other indicia of source, association or sponsorship, in each case, without the prior written consent of the other Party. However, Buoyant may include Customer and its trademarks in its customer lists and promotional materials but will cease further use at Customer’s written request.
12.3. Independent Contractors. The Parties hereto are and shall remain independent contractors. Nothing herein shall be deemed to establish a partnership, joint venture, or agency relationship between the Parties. Neither Party shall have the right to obligate or bind the other Party in any manner to any third party.
12.4. Governing Law; Disputes. This Agreement shall be governed by and construed under the laws of the State of California without giving effect to the principles of conflicts of law and without application of the UN Convention on Contracts for the International Sale of Goods. Any action or proceeding arising from or relating to this Agreement must be brought in a federal court in the Northern District of California or in state court in the City and County of San Francisco, California, and each Party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
12.5. Waivers. No waiver of rights under this Agreement by either Party shall constitute a subsequent waiver of any right under this Agreement and all waivers must be in writing. In the event that any term of this Agreement is held by a court to be unenforceable, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
12.6 Assignment. You may not assign this Agreement without the prior written consent of Buoyant, and any such attempted assignment or transfer shall be void and without effect. Buoyant may freely assign this Agreement.
12.7. Amendments. Except for the Pricing Page, or as set forth in Section 4.5, this Agreement may only be modified by a written document executed by the parties hereto. The terms of any purchase order or similar document submitted by You will have no effect. This Agreement may not be supplemented, explained or interpreted by any evidence of trade usage or course of dealing.
12.8. Notices. All notices, including notices of address change, required to be sent hereunder will be in writing and will be deemed to have been given when delivered by nationally recognized express courier or via email to the following for Buoyant: 548 Market St, PMB 43038, San Francisco, CA 94104-5401, Attn: Legal, and via email to legal@buoyant.io, and to Customer, to the address Buoyant then-has on file for Customer.
12.9 Entire Agreement. This Agreement is the complete agreement between the parties hereto concerning the subject matter of this Agreement and replaces any prior oral or written communications between the parties with respect thereto. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.
12.10 Export. Customer acknowledges that the Software is subject to export restrictions by the United States government and import restrictions by certain foreign governments. Customer will not and will not allow any third party to remove or export from the United States or allow the export or re-export of any part of the Software or any direct product thereof (a) into (or to a national or resident of) any embargoed or terrorist-supporting country, (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals, (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Customer agrees to the foregoing and warrants that it is not located in, under the control of or a national or resident of any such prohibited country or on any such prohibited party list. The Software is further restricted from being used for the design or development of nuclear, chemical or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government.
12.11 Government End Users. Elements of the Software are commercial computer software. If the user or licensee of the Software is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Software was developed fully at private expense. All other use is prohibited.
