End User License Agreement (EULA) – EMEA APAC JAPAN
Effective starting: August 10, 2021
All software and copies of software (Software) identified in order form (Order), which may be provided in paper or via electronic means, that is executed by either (a) an authorized distributor (Distributor) on behalf of Scality (Licensor), or by Licensor, and (b) the party who is entitled to use the software (Licensee) are licensed and not sold in accordance with the Order and this EULA. Distributors must be authorized by Licensor to distribute the Software for this License to be valid. This EULA is incorporated by reference into each Order. An Order may establish prices and volume/metrics of licensed Software but may not modify this EULA unless the Order expressly states that the Order terms supersede this EULA, and such provision is separately signed by Licensor. Licensor owns and retains the exclusive right, title and interest, including intellectual property rights, in the Software and Software documentation and all Software and Software documentation and copies made thereof are licensed, not sold.
The Software may be licensed in an Order as a Free License, Hardware License, Perpetual License, or as a Term License. A Free License is subject to the special terms and conditions in the section “FREE LICENSE TERMS AND CONDITIONS” below. A Hardware License means a license to the Software that is tied to a given hardware device for the usable storage capacity (as defined below) of the device measured in terabytes as specified on an Order and licensed for use on that device for the life of that device. A Perpetual License means a perpetual license to use a particular version of the Software for a specified usable storage capacity (HDD and SSD) measured in terabytes as specified on an Order. A Perpetual License does not terminate (unless Licensee breaches this EULA, any Order or any other agreement with Licensor) and is not tied to a specific hardware device, however, unless Licensee also purchase maintenance and support, does not include updates or upgrades to the Software after the end of any paid-up maintenance and support period. A Term License means a license to use the Software for a specific period of time or for a specific usable storage capacity, or both, as set forth on the Order. In this EULA, the term “Commercial License” means a Hardware License, Perpetual License or Term License.
Unless Licensee breaches this EULA or the Order and Licensor terminates this EULA and/or an Order, Licensor grants Licensee a worldwide, limited, non-exclusive, non-transferable and non-sublicensable:
For a Hardware License: perpetual license to use the object code version of the Software on the designated hardware in the Order, for up to the usable storage capacity specified on the Order, at the location(s) set forth on the Order.
For a Term License: during the Term set forth on an Order, license to use the object code version of the Software for up to the usable storage capacity identified on the Order Form (if the Order fails to specify a specific amount of storage the storage limit shall be one terabyte) at the location(s) set forth on the Order.
Licensee is also licensed to use and make internal copies of all Software documentation provided by Licensor solely in connection with the use of the Software as authorized above. Licensee may make internal copies of the Software solely for backup and restoration purposes but may not use such copies of the Software for live or production use, or any direct or indirect use of the Software which is in live or production use or serving its final or intended or revenue generating purpose (Production Use).
“usable storage capacity” is calculated by dividing total raw capacity used for storing data (which the total capacity of disks used to store data) by the data protection overhead required to protect data on such hardware per the attached formula:
usable data = (raw storage used to store data) / (data protection overhead).
Licensee may only use the Software on operating system listed on the Licensor website at www.scality.com as compatible with the Software.
FREE LICENSE TERMS AND CONDITIONS
Licensor may establish the right to use the Software without a fee for defined amount of usable storage capacity as defined above (the “Free Tier”). Any Free Tier will be set forth on Licensor’s website. The amount of usable storage capacity in a Free Tier may be used on only one hardware or virtual instance and may not be spread across multiple hardware or virtual instances. Licensor may change the amount of usable storage capacity for the Free Tier at any time, including terminating the Free Tier completely. While Licensee may use the Free Tier in regular production, Licensee acknowledges that Licensor’s right to change or even terminate the Free Tier program means that at any time in the future Licensee’s use may no longer qualify for the Free Tier. If Licensor makes a change to the Free Tier, any fees and charges for use of the Software shall only accrue for the time period after the date Licensor makes the change and publishes such modification on its website. Licensor may at any time request a Licensee using the Free Tier to confirm that their usable storage capacity is at or below the then current Free Tier level, and/or to confirm their total usable storage capacity over a span of dates. Licensee shall promptly and accurately confirm its usable storage capacity for such periods requested, and if Licensor has enabled such functionality in the Software, promptly provide Licensor with any usable storage capacity reports enabled in the Software.
THIRD PARTY SOFTWARE
Licensor may distribute software owned by third parties (Third Party Software) with the Software. Third Party Software may be subject to other license terms. To the extent Licensor has the right to distribute such Third Party Software, Licensor grants Licensee all of the rights the Licensor has to Third Party Software for use in connection with the Software. Third Party Software that is not embedded into the executable Software image provided by Licensor is not “Software” in this EULA and Licensor makes no representations or warranties in respect of such Third Party Software.
Except to the extent expressly licensed as provided in this EULA and an Order, Licensee may not directly, or indirectly through another, reproduce, modify, translate or otherwise create derivative works from, rent, lease, loan or otherwise distribute, copy, decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, processes or algorithms by any legal or technical means whatsoever, in respect of all or any part of the Software, Software documentation or Licensor’s Confidential Information (defined below). Licensor reserves all rights to the Software, Software documentation and Licensor Confidential Information not expressly granted herein or in an Order.
Unless otherwise stated in an Order or approved by Licensor in writing, Licensee may not directly or indirectly through or with another: (i) move the Software to a location other than the initial location set forth on the initial Order; (ii) publish or disclose any features, functionalities, attributes, results of any test or benchmarking or comparative study of, the Software or documentation or use such results or information for any software development activity; (iii) remove any product identification, proprietary, copyright or other notices contained in the Software or documentation; or (iv) use the Software on any hardware or systems environment other than those approved by Licensor.
UPDATES AND UPGRADES
Software includes patches, updates, improvements, additions, enhancements and other modifications that may subsequently be made available to Licensee to the extent provided in an applicable Order for maintenance and support services for Commercial Licenses. Licensor makes no commitment to update, upgrade or provide support for Free Licenses. Unless otherwise provided in an Order for maintenance and support services, Licensor may determine that it will not support a particular version of Software licensed on a Commercial License basis with at least one year’s prior notice to Licensee.
ADDING STORAGE CAPACITY
Licensee shall notify Licensor of any planned increases in usable storage capacity on a Commercial License to be added to an Order before such usable storage capacity is added. Licensee shall also notify Licensor of any planned increases in usable storage capacity on a Free License where that increase will exceed the then applicable Free Tier, before such usable storage capacity is added. Licensor shall generate an Order based on such notice. Licensee shall be responsible for the Fees (at Licensor’s standard rates, if none are set forth in an Order) for such added usable storage capacity from the date of such addition regardless of whether it has notified Licensor. Licensee will provide Licensor a report of the actual usable storage capacity of the Licensee system on a quarterly basis, including a
report on the new hardware introduced during the previous quarter. Licensor will “true up” accordingly the license Fees which are due on that basis and will invoice the Licensee as necessary. If a given storage device containing the Software that is licensed on a Hardware License basis is decommissioned and replaced by a new device Licensee would be required to purchase a new Hardware License for the new device.
FEES (when applicable)
This section does not apply to Orders received by the Licensor from a Third-Party (including but not limited to authorized Reseller, authorized Distributor).
Licensee shall pay to Licensor all amounts set forth in an Order in the times provided in such Order (Fees) or if no time is stated, within thirty (30) calendar days after date of an invoice issued by Licensor or a Distributor. Licensee will pay a late payment interest equal to the European Central Bank main refinancing operations rate plus ten (10) basis points per annum, on all late payment, a flat rate recovery cost in the minimum amount of €. 40 per unpaid invoice, and all other costs related to Licensor’s successful collection efforts. If Licensee fails to pay any undisputed amount when due, then in addition to assessing interest and other fees above Licensor may (a) by written notice to Licensee terminate any or all Licenses until paid; (b) suspend some or all services until paid, including maintenance and support services (including any dedicated care services); and/or (c) require reasonable payment assurances in a form satisfactory to Licensor.
TAXES (when applicable)
This section does not apply to Orders received by the Licensor from a Third-Party (including but not limited to authorized Reseller, authorized Distributor).
All amounts payable exclude all applicable value added, sales, use and other taxes and all applicable export and import fees, customs duties and similar charges. Licensee is responsible for payment of all such taxes (other than taxes based on Licensor’s income), fees, duties and charges, and any related penalties and interest, arising from the grant of the license herein and or the receipt of services from Licensor. Licensee will make all payments free and clear of and without reduction for any withholding taxes. If Licensee has an obligation to withhold any amounts Licensee will gross up the payments so that Licensor receives the amount actually quoted and invoiced. If Licensor has a legal obligation to pay or collect taxes for which Licensee is responsible under this section, the appropriate amount shall be invoiced to and paid by Licensee, unless Licensee provides Licensor with a valid tax exemption certificate authorized by the appropriate taxing authority.
DISPUTED INVOICES (when applicable)
This section does not apply to Orders received by the Licensor from a Third-Party (including but not limited to authorized Reseller, authorized Distributor).
If made in good faith, Licensee may dispute any amount owed so long as Licensee provides a written notice of the dispute by the due date of the invoice, including a detailed explanation of the basis for Licensee’s dispute, timely pays the undisputed portion of the invoice, and Licensee diligently works with Licensor to resolve the dispute. Properly disputed amounts are not subject to the interest and other late charges in the Fees section above, provided any amounts resolved to be due are paid within 15 calendar days of such determination. Licensee may not dispute more than three (3) months or 20% of all then outstanding invoices, whichever is greater; if Licensee does, then such failure to pay is a material breach of this EULA by Licensee.
Failure to dispute an invoice is not a waiver of any other rights in this EULA.
For the term of this EULA and all applicable Orders and one (1) year thereafter, (a) Licensee will maintain all books, records, contracts and accounts relating to its use of the Software, the receipt of Services, its payment of Fees and general compliance under this EULA and applicable Orders, and (b) Licensor will have the right, at its own expense and under reasonable conditions of time and place, to audit and copy any or all of such records; provided however, that in no event shall Licensor be permitted to engage in more than two (2) audits in any given calendar year. If any such audit discloses a breach of this EULA and applicable Orders or underpayment of any amounts by Licensee or its employees or agents, Licensee will, in addition to such other rights and remedies as may be available to Licensor as the result of such breach, pay to Licensor the reasonable cost of such audit and copying. Licensor will use information obtained from such audit only to verify and enforce Licensee’s compliance with the terms of this EULA and applicable Orders, to comply with any governmental reporting requirements and for such other purposes as required by law.
Each Party acknowledges that it may be furnished, receive or otherwise have access to information that is of a confidential, proprietary, or trade secret nature furnished or disclosed by one Party (the “Discloser”) to the other Party (the “Recipient”) under this EULA and applicable Orders, including information exchanged in contemplation of entering into this EULA and applicable Orders (Confidential Information) of the other Party in connection with this EULA and applicable Orders which shall remain the property of the Discloser. Each Party agrees that Confidential Information received from the other Party: (a) will only be used as necessary to achieve the purposes and objectives of this EULA and applicable Orders; (b) will not be disclosed to any third party without prior written approval of Discloser; (c) may only be disclosed within the receiving organization on a “need-to-know” basis to persons who have been advised of the existence of this EULA and applicable Orders and agree to be bound by its terms; and (d) will be treated with at least the same degree of care as Recipient treats its own Confidential Information, but in no event with less than a reasonable degree of care. Recipient will notify Discloser promptly of any unauthorized use or disclosure of Confidential Information and cooperate with and assist Discloser in every reasonable way to stop or minimize such unauthorized use or disclosure. Notwithstanding the above Confidential Information will not include information that: (i) is or becomes known to the public without breach of this EULA and applicable Orders by Recipient; (ii) is already known to or in the possession of Recipient at the time of disclosure; (iii) is independently developed by or for Recipient as evidenced by Recipient’s own files and records; (iv) is rightfully obtained by Recipient from a third party that was lawfully in possession of the information and had the right to disclose the same; or (v) the Parties mutually agree in writing to release from the terms of this EULA and applicable Orders. Confidential information will not be deemed to be publicly known merely because all or a portion of such information is embodied in general disclosures or because individual features and/or components (or the combination of such features and components) are or become known to the public. A Party may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order or otherwise maintain the confidentiality of the information to be disclosed; or (b) to establish a Party’s rights under this EULA and applicable Orders, including to make such court filings as it may be required to do.
LICENSOR WARRANTIES; REMEDY
With respect to a Commercial License, Licensor represents and warrants that the Software will conform in all material respects to the Software documentation for a period of ninety (90) days after the Software is delivered to Licensee pursuant to this EULA and applicable Orders, provided that such warranty will not apply to failures to conform to the Software documentation to the extent such failures arise, in whole or in part, from (a) any use of the Software other than in accordance with the Software documentation, (b) modification of the Software by Licensee or any third party, or (c) any combination of the Software with software, hardware or other technology not provided by Licensor under this EULA and applicable Orders or specified by Licensor to work with the Software. For all warranty claims made by Licensee during the warranty period, Licensor will use commercially reasonable efforts to resolve, at no charge to Licensee, any such nonconformities. This is Licensee’s sole and exclusive remedy for a breach of this warranty, except to the extent provided in an Order. LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES IN RESPECT OF FREE LICENSES.
EXCEPT AS EXPRESSLY WARRANTED IN THIS EULA, THE SOFTWARE, AND ANY OTHER MATERIALS (INCLUDING THIRD PARTY SOFTWARE) AND/OR SERVICES PROVIDED BY LICENSOR ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND LICENSOR AND THEIR
SUPPLIERS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF QUIET ENJOYMENT, ACCURACY OF DATA, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT
OR PATENT. NO WARRANTY IS MADE BY LICENSOR ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE OR SERVICES PROVIDED UNDER THIS EULA WILL MEET LICENSEE’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
TERM AND TERMINATION
This EULA is effective on the date the first Order referencing this EULA is executed by the Parties and will terminate on the earlier of termination as provided below, or the last date the last Order term ends. A Party may terminate this EULA and applicable Orders if the other Party is in material breach of any obligation under this EULA and applicable Orders and fails to remedy such failure or breach within thirty (30) days after receipt of written notice of such breach from the non-breaching Party, including, but not limited to failure to timely pay the Fees. If this EULA and applicable Orders are terminated by either Party, or otherwise expires, then (a) within ten (10) days of the effective date of termination or the date of expiration, as applicable, Licensee will certify in writing to Licensor that the Software and all other Confidential Information in the possession of Licensee have been destroyed; (b) any License rights granted by Licensor under the applicable Order will immediately terminate as of the effective date of termination or the date of expiration, as applicable; (c) Licensee will promptly pay all unpaid amounts accrued under the terminated or expired Order; (d) each Party shall return or destroy all Confidential Information of the other Party in its possession; and (e) Licensor will have no further responsibility or liability thereunder as of the effective date of termination or the date of expiration, as applicable. Notwithstanding the above, unless the term was terminated for Licensee’s material breach, Hardware Licenses shall continue solely for the licensed devices in the amount of licensed usable storage capacity. Notwithstanding the above, a Free License may be terminated at any time by Licensor, with notice (email suffices) to Licensee.
With respect to Commercial Licenses Licensor shall defend, indemnify, and hold Licensee harmless against all costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities awarded to a third party arising out of any claim by a third party that the Software as delivered by Licensor infringes or misappropriates, as applicable, any U.S. or French patent issued as of the effective date of the applicable Order, or any copyrights or trade secrets under applicable laws of any jurisdiction within the United States or within France. Notwithstanding the foregoing, Licensor shall have no obligation or liability to the extent that the alleged infringement arises from (1) the combination, operation, or use of the Software with products, services, information, materials, technologies, business methods or processes not furnished by Licensor or specified in the Software documentation; (2) modifications to the Software, which modifications are not made by Licensor; (3) failure to use updates to the Software provided by Licensor; (4) misuse of the Software or use of the Software except in accordance with the Software documentation; or (5) breach of confidentially provisions herein (circumstances under the foregoing clauses (1), (2), (3), (4), and (5), collectively, “Licensee Indemnity Responsibilities”). Upon the occurrence of any claim for which indemnity is or may be due by Licensor, or in the event that Licensor believes that such a claim is likely, Licensor may, at its option (i) appropriately modify the Software so that it becomes non-infringing, or substitute functionally equivalent software or services; (ii) obtain a license to the applicable third-party intellectual property rights; or (iii) terminate this EULA and applicable Orders on written notice to Licensee and refund to Licensee any unused prepaid license Fees under the then current Order Term(s). The obligations set forth in this section constitute Licensor’s entire liability and Licensee’s sole remedy for any actual or alleged infringement or misappropriation.
Licensee shall indemnify, hold harmless, and defend Licensor from and against all losses, expenses (including reasonable attorneys’ fees), damages, and liabilities awarded to a third party resulting from a claim by a third party arising from or in connection with the Licensee Indemnity Responsibilities.
Each party (as the indemnitee) agrees to give the other Party (as the indemnitor) (a) prompt written notice of such claim; (b) sole authority to control and direct the defense and/or settlement of such claim; and (c) such information and assistance as may reasonably be requested, at the indemnitor’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, the indemnitor shall not settle any third-party claim unless such settlement completely and forever releases the indemnitee with respect thereto or unless the indemnitee provides its prior written consent to such settlement. The indemnitee may participate in such defense at its own expense by counsel of its choice. For the avoidance of doubt, Licensor does not agree and will not indemnify Licensee in respect of any Free License.
LIMIT OF LIABILITY
With respect to Commercial Licenses Licensor will be liable to Licensee (or any affiliate of Licensee) only for the amount of Licensee’s actual direct damages, not to exceed (in the aggregate for all claims) the amount paid by Licensee to Licensor for the specifically deployed Software that caused the liability and is the subject of the claim. For the avoidance of doubt, Licensor will not be liable in damages for any claim arising from any use of a Free License by Licensee; Licensee’s sole and exclusive remedy for any claim relating to a Free License is to terminate use of the Software licensed under the Free License. In no event will Licensor’s aggregate liability for all claims arising under or relating to any single Order exceed the total amount paid to Licensor by Licensee pursuant to such Order for the twelve (12) months prior to month in which the event giving rise to liability occurred under such Order. EXCEPT WITH RESPECT TO (A) BREACHES OF LICENSEE’S OBLIGATIONS SET FORTH IN THE SECTION “CONFIDENTIALITY” AND THE SECTION “INDEMNITY”; AND (B) DAMAGES ATTRIBUTABLE TO LICENSEE’S MISAPPROPRIATION, VIOLATION OR INFRINGEMENT OF LICENSOR’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY, OR LICENSOR’S SUPPLIERS, BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, DAMAGES RESULTING FROM LOSS OF DATA, SECURITY BREACH, PROPERTY DAMAGE, LOST REVENUE, LOST SAVINGS OR LOSS OF BUSINESS) ARISING OUT OF OR IN CONNECTION WITH THIS EULA, THE PERFORMANCE OF THE SOFTWARE OR LICENSOR’S PERFORMANCE OF SERVICES OR OF ANY OTHER OBLIGATIONS RELATING TO THIS EULA, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The limitations of liability set forth in this Section will survive and apply notwithstanding the failure of any limited or exclusive remedy for breach of warranty set forth in this EULA and applicable Orders.
This EULA and all Orders will be governed by the laws of the State of France, without regard to any provision of French law that would require or permit the application of the substantive law of any other jurisdiction. This EULA and all Orders will not be subject to (a) the United Nations Convention on Contracts for the International Sale of Goods; or (b) any version of the Uniform Computer Information Transactions Act (UCITA) as it is, or may be, adopted in any state. The Parties hereby irrevocably consent to the exclusive jurisdiction of the Paris Courts, including in case of claim from third parties. The Parties expressly waive any right to a trial by jury in any claim between them, whether arising hereunder, or in tort or under applicable statutory or regulatory law.
COMPLIANCE WITH LAWS
Each Party will perform its obligations and exercise its rights in a manner that complies with all applicable laws. Licensee covenants to obtain all permits, licenses and other consents necessary for the installation, importation, use and exercise of other rights granted to it herein.
PERSONAL DATA PROTECTION
In the course of its activity, Licensor may be required to collect and process or sub-process the personal data of the Licensee or the Licensee’s customers (hereafter referred to as the “Users”).
Licensor attaches particular importance to the respect for the privacy of the Users and of the confidentiality of their personal data, and is thus committed to processing or sub-processing the data in compliance with the applicable laws and regulations, and in particular Law No. 78-17 of 6 January 1978 relating to Information Technology, Data Files and Civil Liberties, and Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (hereafter referred to as the “GDPR”).
This EULA, and each Order constitute the entire agreement between the Parties and supersedes all other prior or contemporaneous communications between the Parties (whether written or oral) relating to the subject matter of this EULA and applicable Orders. This EULA and all Orders may be modified or amended solely in a writing signed by both Parties. Licensee may not assign or otherwise transfer any right or obligation set forth in this EULA or any Order without Licensor’s prior written consent, which consent shall not be unreasonably delayed, conditioned or withheld. Any purported assignment in violation of the preceding sentence will be void. This EULA and all Orders will be binding upon the Parties’ respective successors and permitted assigns. This EULA and each order have been mutually negotiated and are deemed to have been prepared at arm’s length at the joint direction and construction of the Parties and is to be interpreted in accordance with its terms without favor to either Party. Any notice hereunder will be in writing and sent by electronic mail, provided any notice the failure to respond to of which would result in a termination of this EULA or an Order will be delivered by reliable overnight courier, signature required. Notices shall be in English and will be deemed given on the earlier of the date of actual receipt without rejection by an email system, or the date recorded as delivered by the overnight courier. All notices will be sent to the other Party at its address as set forth in the Order. Each party consents to receive communications from the other electronically. The Parties agree that all agreements, notices, disclosures and other communications that are provided electronically satisfy any legal requirement that such communications be in writing. The provisions of this EULA and applicable Orders will be deemed severable, and the unenforceability of any one or more provisions will not affect the enforceability of any other provisions. In addition, if any provision of this EULA and applicable Orders, for any reason, is declared to be unenforceable, the Parties will substitute an enforceable provision that, to the maximum extent possible under applicable law, preserves the original intentions and economic positions of the Parties. No failure or delay by a Party in exercising any right, power or remedy will operate as a waiver of that right, power or remedy, and no waiver will be effective unless it is in writing and signed by the waiving Party. If a Party waives any right, power or remedy, the waiver will not waive any successive or other right, power or remedy the Party may have under this EULA and applicable Orders. This EULA and applicable Orders do not confer any benefit, right or privilege in any person or entity not a party to this EULA and applicable Orders. Licensee grants Licensor the right to (a) identify Licensee as a customer of Licensor, and (b) use Licensee’s name, mark and/or logo on Licensor’s website and/or in Licensor marketing materials. Except for the obligations related to Confidential Information, License rights and restrictions, and payment, neither Party is responsible for any failure to comply with the terms of this EULA and applicable Orders or any Order where the failure or delay is due to causes beyond the reasonable control of the Party. The relationship established by this EULA and applicable Orders is solely that of a licensor and licensee, and each Party will act at all times as an independent party for its own account. Neither Party may represent or hold itself out as an agent or representative of the other. Neither Party has any authority to, and is expressly prohibited from, creating or assuming any obligation on behalf of the other, and from otherwise making or extending any representation, warranty, guarantee or other commitment for or on behalf of the other. The terms set forth in the sections entitled LIMITATIONS, OTHER RESTRICTIONS, FEES (to the extent not paid at the end of the Term), AUDIT (for the period stated), CONFIDENTIALITY, DISCLAIMER, TERM AND TERMINATION, INDEMNITY, LIMIT OF LIABILITY, APPLICABLE LAW, COMPLIANCE WITH LAWS and
GENERAL survive any termination or expiration of this EULA and applicable Orders.