SOFTWARE LICENSE AGREEMENT – TERMS AND CONDITIONS (UNITED STATES)
Effective starting: November 14, 2017
SOFTWARE LICENSE AGREEMENT – TERMS AND CONDITIONS (United States)
These Software License Agreement – Terms and Conditions (the “Terms and Conditions”) are made and are effective as of the date set forth on the SOFTWARE LICENSE ORDER FORM (“Order”) signed by the parties thereto, that incorporates these terms and conditions by reference. In these Terms and Conditions (also referred to herein as the “Agreement”), Scality and the Customer identified in the Order are referred to herein collectively as the “Parties” and individually as a “Party”.
1. DEFINITIONS. Certain capitalized terms, if not otherwise defined above, shall have the meanings set forth below:
1.1 “Agreement” means the Order and these terms and conditions. To the extent of any conflict between them, none being intended, the Order terms shall control.
1.2 “Customer” means the entity that has licensed the Software under an Order.
1.3 “DCS” means Dedicated Care Support, which is provided under the separate Dedicated Care Support Services Terms and Conditions, and is only provided if the Order includes such services.
1.4 “Derivative Works” means a revision, enhancement, modification, translation, abridgment, condensation, expansion, new releases, or any other form in which all or part of any software included in the Software may be recast, transferred or adapted.
1.5 “Documentation” means all user manuals and user documentation associated with the Software that is made available to Customer by Scality pursuant to the terms of the Agreement.
1.6 “Effective Date” means the effective date as set forth on the Order.
1.7 “Fees” means all amounts owed by Customer to Scality under the Agreement.
1.8 “Hardware License” means a license to the Software that is tied to a given hardware device for the usable storage capacity (HDD and SSD) of the device measured in terabytes as specified on an Order and licensed for the life of that device.
1.9 “Intellectual Property Rights” means all intellectual and industrial property rights recognized in any jurisdiction, including copyrights, mask work rights, moral rights, trade secrets, patent rights, rights in inventions, trademarks, trade names and service marks (including without limitation applications for, and registrations, extensions, renewals, and re-issuances of, the foregoing).
1.10 “License” means licenses for Production Use and Non-Production Use provided by Scality to Customer pursuant to the Agreement as either a Hardware License or a Term License.
1.11 “Non-Production Use” means any use other than the Production Use.
1.12 “Production Use” means any live orproductionuse, 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.
1.13 “Products” means, collectively, the Software and Documentation.
1.14 “Services” means the services provided by Scality to Customer pursuant to the Agreement.
1.15 “Scality” means the entity listed in the Order that is licensing the Software to the Customer.
1.16 “Software” means the object code version of the software identified and defined as Software in each Order, such as the RING software and the applicable connectors ordered. The term “Software” includes, without limitation, any patches, updates, improvements, additions, enhancements and other modifications that may subsequently be made available to Customer pursuant to the terms of the Agreement. The term “Software” does not include Third Party Software.
1.17 “Supported Platform” means an operating system listed on the Scality website (at www.scality.com) as one with which the Software is compatible.
1.18 “Storage Capacity” means the amount of usable storage capacity (HDD and SSD) of the system (measured in terabytes) that may be used in connection with the Products, where usable storage capacity is calculated by subtracting from total raw capacity (HDD and SSD of all hardware on which the Products are installed) the data protection overhead required to protect usable data on such hardware.
1.19 “Term” means the period of time set forth in the Order for a Term License and the life of the specific storage drive (HDD and SSD) as specified on an Order for a Hardware License.
1.20 “Term License” means a license to the Software for a specific period of time as set forth on the Order.
1.21 “Third Party Software” means the object code version of the software identified in an Order as Third Party Software or other software identified in the Documentation as Third Party Software that is included with the Software, including, but not limited to, open source software.
2. NATURE OF THE TERMS AND CONDITIONS
The Agreement describes the Products (and associated Licenses), Services, and associated terms and conditions available for purchase by Customer. Scality is not obligated to provide, and Customer is not obligated to license or purchase (as applicable), any Products and/or Services unless and until the Parties execute the Order. These Terms and Conditions are, and shall be deemed to be, incorporated by reference into each such Order. Services will be provided by Scality using such systems, tools, and other means that it determines.
3. INTELLECTUAL PROPERTY RIGHTS; LICENSE
3.1 License. For a Hardware License, subject to the terms of the Agreement and any restrictions set forth in the Order, Scality hereby grants to Customer a worldwide, limited, non-exclusive and non-transferable license, during the Term set forth on an Order: (a) to use the object code version of the Software and the Third Party Software solely for Customer’s Production Use or Non-Production Use with no right to sublicense or otherwise offer the Software on a stand-alone basis for up to the number of storage devices identified on the Order Form, up to the Storage Capacity specified on the Order, at the location(s) set forth on the Order; and (b) to use the Documentation solely in connection with the use of the Software as authorized above. For clarity, Customer may make copies of the Software for use in Customer’s Production Use and/or Non-Production Use, subject to Section 3.2 below. Customer may make a reasonable number of copies of the Documentation for its internal use. The Third Party Software may contain additional terms as identified in an Order or the Documentation for open source software. For a Term License, subject to the terms of the Agreement and any restrictions set forth in the Order, Scality hereby grants to Customer a worldwide, limited, non-exclusive and non-transferable license, during the Term set forth on an Order: (a) to use the object code version of the Software and the Third Party Software solely for Customer’s Production Use or Non-Production Use with no right to sublicense or otherwise offer the Software on a stand-alone basis for up to the 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; and (b) to use the Documentation solely in connection with the use of the Software as authorized above. For clarity, Customer may make copies of the Software for use in Customer’s Production Use and/or Non-Production Use, subject to Section 3.2 below. Customer may make a reasonable number of copies of the Documentation for its internal use. The Third Party Software may contain additional terms as identified in an Order or the Documentation for open source software.
3.2 License Limitations. Except to the extent specifically permitted by Section 3.1, Customer may not (i) reproduce, modify, translate or create Derivative Works of all or any part of the Products; (ii) rent, lease, loan or otherwise distribute the Products or any Third Party Software to any third party or otherwise allow a third party to use the Products or any Third Party Software (either by way of remote terminal or through other computer facilities); (iii) copy, decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, processes or algorithms of all or any part of the Software by any legal or technical means whatsoever, nor disclose any of the foregoing; (iv) move the Software or any Third Party Software to a location other than the initial location set forth on the initial Order, without the prior written approval from Scality; or (v) publish or disclose to any third party any opinions relating to, or the results of any test or benchmarking or comparative study of the Software or any Third Party Software (whether or not obtained or performed with Scality’s assistance), or use such results for its own competing software development activities; or (vi) remove any product identification, proprietary, copyright or other notices contained in the Products or the Third Party Software. Customer may not sublicense any of its license rights to the Products or any Third Party Software (including without limitation the right to sublicense the Products to customers of Customer or other third parties). The Software may only be used with the Supported Platforms identified in the Order.
3.3 Professional Services. Scality will not perform any specific development, training or integration services for Customer, unless specifically agreed in a separate agreement between the Parties.
3.4 Title; Ownership. Scality owns and retains all right, title and interest, including without limitation Intellectual Property Rights, in and to the Products and Scality Confidential Information, and any other intellectual property that results from the performance of the Services other than Customer Confidential Information. The third parties identified in the Documentation and/or an Order for all Third Party Software retain ownership of their respective Third Party Software. All rights not expressly granted under the Agreement by Scality are hereby reserved by Scality. All copyrights, trade secret rights, trademarks, logos or other words identifying Customer or relating to their end user’s data or information are and shall remain the exclusive property of the Customer or its or their end user’s (or its or their licensors).
4. MAINTENANCE & SUPPORT SERVICES.
4.1 Maintenance and Support. All Maintenance and Support shall be provided under the Maintenance and Support Terms and Conditions incorporated into the Order.
4.2 Remote Monitoring and Diagnosis. The Software contains functionality that allows Scality to remotely monitor the Software, however, such functionality is neither enabled nor used unless Customer has ordered and accepted DCS. If Customer has ordered DCS, Customer hereby grants Scality the right to monitor and gain access to the Software for the limited purposes set forth in this Section and to provide DCS services. Customer acknowledges that the Software and its monitoring tools collect and transmit certain status information to Scality regarding the installation and operation of the Software. As part of Scality’s monitoring tools, there is a real-time monitoring, alarming and capacity planning solution. On the installation, the information indicates to Scality whether installation of the Software was successfully completed as well as whether the Software has encountered an error within the installation process operated by Customer. This information is collected by Scality for the purpose of evaluating and improving Software performance and installation success rate. On operation of the Software, the information concerns Software global status and its components capabilities, operations, capacity trends and health. Scality collects and remotely monitor the Software for the limited purpose of improving Software performance and service quality provided to Customer. The status information could contain personally identifiable information only if such information is included in the name of the file or folder encountered by the Software at the time it encounters an error. This information shall not be correlated with any personally identifiable information and shall not be considered as a process of personal data. The Software shall also collect and transmit to Scality other information which may be used for license administration, software analysis, and for improving software functionality. Scality shall also have a right to audit the installed Software to obtain such information, such audit to be performed remotely, if remote access is possible, and otherwise on-site; provided that if such audit is to be performed on-site, then Scality will provide reasonable advance notice of same, and such audit shall occur during normal business hours. The information collected by Scality pursuant to the present section shall not be correlated by Scality with any personally identifiable information.
5. FEES; PAYMENT
5.1 Fees. In consideration for the licenses granted to Customer and the performance of Scality’s obligations under the Agreement or the DCS, Customer shall pay to Scality, without offset or deduction, certain Fees, in such amounts as may be determined by reference to an Order. Unless otherwise provided in such Order, all such Fees shall be due and payable within thirty (30) calendar days after date of the Order for Products or the date of the Scality invoice for all other Fees. Customer 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 amounts not paid in accordance with this Section 5.1; this interest will begin to accrue on the day after the payment due date and will accumulate on the outstanding balance on a daily basis until paid in full. Additionally, Customer will pay a flat rate recovery cost indemnity in the minimum amount of €. 40 per unpaid invoice as well as all other costs related to the collection of payments.
5.2 Special Terms for Hardware Licenses. If the Products are purchased under a Hardware License, then each time a new storage drive is added to the system (measuring it in TB capacity for usable data), the corresponding license Fee becomes due, as per Scality’s pricing policy. Customer will provide Scality a report of the actual capacity of the Customer system on a quarterly basis, including a report on the new hardware introduced during the previous quarter. Scality will “true up” accordingly the license Fees which are due on that basis and will invoice the Customer as necessary. If a given storage drive in a Customer deployment of a system containing Scality Software is being decommissioned and replaced by a new drive with a higher capacity, the purchase of a new license would become necessary, as per Scality pricing policy.
5.3 Taxes. All amounts payable under the Agreement shall exclude all applicable value added, sales, use and other taxes and all applicable export and import fees, customs duties and similar charges. Customer will be responsible for payment of all such taxes (other than taxes based on Scality’s income), fees, duties and charges, and any related penalties and interest, arising from the payment of any Fees hereunder, the grant of license rights hereunder, or the delivery of Services. Customer will make all payments required hereunder to Scality free and clear of, and without reduction for, any withholding taxes. If Customer have an obligation to withhold any amounts under any law or tax regime (other than income tax), Customer will gross up the payments so that Scality receives the amount actually quoted and invoiced. If Scality has a legal obligation to pay or collect taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provide Scality with a valid tax exemption certificate authorized by the appropriate taxing authority
5.4 Disputed Charges. Customer will pay undisputed amounts when due. If Customer disputes in good faith any amount owed by Customer, Customer may withhold such disputed amount (up to a total for all disputed amounts of the total amount owed by Customer for the three (3) immediately preceding calendar months) so long as Customer provides a written notice of dispute by the due date for the disputed amount including a detailed explanation of the basis for Customer’s dispute. If Scality does not agree with Customer’s reasons for disputing any amount, the dispute will then be resolved under Section 11.1, however, the Parties will in good faith attempt to resolve such disputes within ninety (90) days of Scality’s receipt of Customer’s notice of dispute. If the dispute on any charge is resolved in favor of Scality, such charges will be due and payable within ten (10) days of such resolution, including applicable late fees from the original due date of payment by Customer for such charges.
5.5 Assurances. If Customer fails to pay any undisputed amount when due, then in addition to assessing interest Scality may (a) terminate any or all Licenses until paid; (b) suspend some or all Services until paid, including services provided pursuant to the DCS; and/or (c) require reasonable payment assurances (“Assurances”) including pre-payment of Fees, guaranties or letters of credit and condition continuing Licenses and Services on receipt of such Assurances. Upon thirty (30) days’ notice, Scality may require Assurances as a condition to continuing to provide Licenses and Services based on any material adverse change in the financial condition of Customer.
5.6 Audit. For the term of the Agreement and one (1) year thereafter, (a) Customer will maintain all books, records, contracts and accounts relating to its use of the Products, the receipt of Services, its payment of Fees and general compliance under the Agreement, and (b) Scality 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 Scality be permitted to engage in more than two (2) audits in any given calendar year. If any such audit discloses a breach of the Agreement or underpayment of any amounts by Customer or its employees or agents, Customer will, in addition to such other rights and remedies as may be available to Scality as the result of such breach, pay to Scality the reasonable cost of such audit and copying. Scality will use information obtained from such audit only to verify and enforce Customer’s compliance with the terms of the Agreement, to comply with any governmental reporting requirements and for such other purposes as required by law.
6.1 Definition. The term “Confidential Information” means information that is of a confidential, proprietary, or trade secret nature and is furnished or disclosed by one Party (the “Discloser”) to the other Party (the “Recipient”) under the Agreement (including information exchanged in contemplation of entering into the Agreement) that is: (a) marked as confidential; (b) if orally or visually disclosed, identified as confidential upon disclosure; or (c) due to its character, nature, or method of transmittal, information that a reasonable person under like circumstances would treat as confidential.
6.2 Protection of Confidential Information. Each Party acknowledges that it may be furnished, receive or otherwise have access to Confidential Information of the other Party in connection with the Agreement 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 the Agreement; (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 the Agreement 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. Furthermore, Recipient agrees that it will not, and will not permit a third party to, (i) copy, decompile, reverse engineer, disassemble or create derivative works any Confidential Information except as specifically permitted under the Agreement or otherwise with the advance written consent of Discloser or (ii) alter, remove, or suppress any copyright, trademark, confidentiality, or other proprietary notices, marks or any legends placed, included, affixed, embedded or otherwise appearing in or on any Confidential Information, Software or Documentation or any related material; or fail to ensure that all such notices and legends appear on all full or partial copies of the Confidential Information, Software, Documentation or any related material. 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.
6.3 Exceptions. “Confidential Information” will not include information that: (i) is or becomes known to the public without breach of the Agreement 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 the Agreement. 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.
6.4 Exclusions. Notwithstanding the foregoing, each 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 or the requirements of the Securities and Exchange Commission (“SEC”) pursuant to the rules and regulations promulgated by the SEC, as well as to the New York Stock Exchange and any other regulator charged with the administration, oversight or enforcement of regulations applicable to any business conducted by Scality, 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 the Agreement, including to make such court filings as it may be required to do.
7.1 Scality Warranties. Scality represents and warrants that the Software will conform in all material respects to the Documentation for a period of ninety (90) days after the Software is delivered to Customer pursuant to the Agreement, provided that such warranty will not apply to failures to conform to the 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 Documentation, (b) modification of the Software by Customer or any third party, or (c) any combination of the Software with software, hardware or other technology not provided by Scality under the Agreement or specified by Scality as not interoperable with the Software. For all warranty claims made by Customer during the warranty period, Scality will use commercially reasonable efforts to resolve, at no charge to Customer, any such non-conformities. This is Customer’s sole and exclusive remedy for a breach of this warranty.
7.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY WARRANTED IN SECTION 7.1 OF THE AGREEMENT, THE PRODUCTS, AND ANY OTHER MATERIALS (INCLUDING THIRD PARTY SOFTWARE) AND/OR SERVICES PROVIDED BY SCALITY ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND SCALITY AND THEIR SUPPLIERS EXPRESSLY DISCLAIMS 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 SCALITY ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE. SCALITY DOES NOT WARRANT THAT THE PRODUCTS OR SERVICES PROVIDED UNDER THE AGREEMENT WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
8. Term and Termination
8.1 Term. The Agreement shall become effective upon the Effective Date and shall remain in full force and effect until the expiration or termination of all Terms set forth in the Order into which these Terms and Conditions were incorporated unless terminated earlier as provided for under the Agreement.
8.2 Termination by Either Party. A Party may terminate the Agreement if the other Party is in breach of any material obligation under the Agreement 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.
8.3 Effect of Termination/Expiration. If the Agreement is 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, Customer will certify in writing to Scality that the Products and all other Confidential Information in the possession of Customer have been destroyed or otherwise secured in accordance with Section 6; (b) any License rights granted by Scality under the applicable Order will immediately terminate as of the effective date of termination or the date of expiration, as applicable; (c) Customer 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) Scality will have no further responsibility or liability thereunder as of the effective date of termination or the date of expiration, as applicable.
9.1 Scality Indemnity. Scality shall defend, indemnify, and hold Customer 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 Products as delivered by Scality infringes or misappropriates, as applicable, any U.S. patent issued as of the Effective Date or any copyrights or trade secrets under applicable laws of any jurisdiction within the United States or within France, provided that Customer gives Scality (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 Scality may reasonably request, at Scality’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, Scality shall have no obligation or liability to the extent that the alleged infringement arises from (1) the combination, operation, or use of the Products with products, services, information, materials, technologies, business methods or processes not furnished by Scality; (2) modifications to the Products, which modifications are not made by Scality; (3) failure to use updates to the Products provided by Scality; (4) misuse of the Software or use of the Software except in accordance with the Documentation; or (5) breach of confidentially provision (circumstances under the foregoing clauses (1), (2), (3), (4), and (5), collectively, “Customer Indemnity Responsibilities”). Upon the occurrence of any claim for which indemnity is or may be due under Section 9.2, or in the event that Scality believes that such a claim is likely, Scality may, at its option (i) appropriately modify the Product 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 the Agreement on written notice to Customer and refund to Customer any unused license Fees under the then current Order Term(s). The obligations set forth in this Section 9 shall constitute Scality’s entire liability and Customer’s sole remedy for any actual or alleged infringement or misappropriation.
9.2 Indemnification by Customer. Customer shall indemnify, hold harmless, and defend Scality 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 Customer Indemnity Responsibilities. Scality agrees to give Customer (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 Customer may reasonably request, at Customer’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, Customer shall not settle any third-party claim against Scality unless such settlement completely and forever releases Scality with respect thereto or unless Scality provides its prior written consent to such settlement. In any action for which Customer provides defense on behalf of Scality, Scality may participate in such defense at its own expense by counsel of its choice.
10. Limit of Liability
10.1 Limitation of Liability. If Customer should become entitled to claim damages from Scality (including for breach of contract, breach of warranty, negligence or other tort claim), Scality will be liable only for the amount of Customer’s actual direct damages, not to exceed (in the aggregate for all claims) the amount paid by Customer to Scality for the specifically deployed Product that caused the liability and is the subject of the claim. In no event will Scality’s aggregate liability for all claims arising under or relating to any single Order exceed the total amount paid to Scality by Customer pursuant to such Order for the twelve (12) months prior to month in which the event giving rise to liability occurred under such Order.
10.2 Consequential Damages. EXCEPT WITH RESPECT TO (A) BREACHES OF CUSTOMER’S OBLIGATIONS SET FORTH IN SECTION 6 (CONFIDENTIALITY) AND SECTION 9 (INDEMNITY); AND (B) DAMAGES ATTRIBUTABLE TO CUSTOMER’S MISAPPROPRIATION, VIOLATION OR INFRINGEMENT OF SCALITY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY, OR SCALITY’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 THE AGREEMENT, THE PERFORMANCE OF THE SOFTWARE OR SCALITY’S PERFORMANCE OF SERVICES OR OF ANY OTHER OBLIGATIONS RELATING TO THE AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.3 The limitations of liability set forth in this Section 10 will survive and apply notwithstanding the failure of any limited or exclusive remedy for breach of warranty set forth in the Agreement.
11. Laws and Dispute Resolution
11.1 Choice of Law. The Agreement will be governed by the laws of the United States and the State of California, without regard to any provision of California law that would require or permit the application of the substantive law of any other jurisdiction. The Agreement 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.
11.2 The Parties hereby irrevocably consent to the exclusive personal jurisdiction and venue of federal and state courts located in the State of California, including in case of claim from third parties.
11.3 Informal Dispute Resolution. At the written request of either Party, the Parties will attempt to resolve any dispute arising under or relating to the Agreement through the informal means described in this Section 11.2. Each Party will appoint a senior management representative who does not devote substantially all of his or her time to performance under the Agreement. The representatives will furnish to each other all non-privileged information with respect to the dispute that the Parties believe to be appropriate and germane. The representatives will negotiate in an effort to resolve the dispute without the necessity of any formal proceeding. Formal proceedings, for the resolution of the dispute may not be commenced until the earlier of: (a)the designated representatives conclude that resolution through continued negotiation does not appear likely; or (b)thirty (30) calendar days have passed since the initial request to negotiate the dispute was made; provided, however, that a Party may file earlier to avoid the expiration of any applicable limitations period, to preserve a superior position with respect to other creditors, or to apply for injunctive or equitable relief.
11.4 Compliance with Laws. Each Party, at its sole expense, will perform its obligations and exercise its rights in a manner that complies with laws. If a charge is made that a Party is not complying with any such laws, such Party will promptly notify the other Party of such charges in writing. Each Party will comply with the export laws and regulations of the United States and other applicable jurisdictions. Each Party will, at its sole cost and expense, obtain and maintain in effect all permits, licenses, approvals and other consents related to its obligations under the Agreement. Without limiting the foregoing, Customer will be required to obtain all permits, licenses and other consents necessary for the development and distribution of the Products contemplated by any Order. If Customer violates this Section 11.3, Scality may terminate the Agreement upon notice.
12.1 Entire Agreement. The Agreement (the Order and these Terms and Conditions) 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 the Agreement. The Agreement may be modified or amended solely in a writing signed by both Parties.
12.2 Assignment. Customer may not assign or otherwise transfer any right or obligation set forth in the Agreement (whether by operation of law or otherwise) without Scality’s prior written consent, which consent shall not be unreasonably delayed, conditioned or withheld; provided, however, that Customer may assign the Agreement to any company which controls, is controlled by, or is under common control with Customer, or in the event of a merger, acquisition or sale of all or substantially all of the assets thereof. Notwithstanding the foregoing, Customer may not assign or otherwise transfer any right or obligation set forth in the Agreement (whether by operation of law or otherwise) without Scality’s prior written consent if the assignee or transferee is a competitor of, or in competition with, Scality. Any purported assignment in violation of the preceding sentence will be void. Scality may assign all or part of its rights or obligations set forth in the Agreement (whether by operation of law or otherwise) and all sums due or to become due pursuant to the Agreement for any reason. The Agreement will be binding upon the Parties’ respective successors and permitted assigns.
12.3 Order of Precedence; Interpretation. If there is any conflict between the general terms and conditions of the Agreement and the terms contained in any Order, the Parties will attempt to read any such conflicting provisions consistently, however, in the event such a consistent reading cannot be accomplished, the Order will take precedence over such other terms solely with respect to such Order and solely with respect to such conflicting terms. The Agreement has been mutually negotiated, and is 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.
12.4 Notice. Any legal notice or other communication required or permitted to be made or given by either Party pursuant to the Agreement will be in writing, in French or in English, and will be deemed to have been duly given: (a)five (5) business days after the date of mailing if sent by registered mail, postage prepaid, with return receipt requested; (b)when transmitted if sent by facsimile, provided a confirmation of transmission is produced by the sending machine and a copy of the notice is promptly sent by another means specified in this Section 12.4; or (c)when delivered if delivered personally or sent by express courier service. 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. Scality may communicate with Customer by e-mail or posting notices on the Scality web site. Customer agrees that all agreements, notices, disclosures and other communications that Scality provides to it electronically satisfy any legal requirement that such communications be in writing.
12.5 Severability. The provisions of the Agreement 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 the Agreement, 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.
12.6 No Waiver. 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 the Agreement.
12.7 Third Parties. Except for the suppliers of Third Party Software as contemplated in the Agreement, the Agreement is not intended nor will it be interpreted to confer any benefit, right or privilege in any person or entity not a party to the Agreement.
12.8 Marketing. Customer grants Scality the right to (a) identify Customer as a Scality Customer, and (b) with the prior approval in writing by Customer, which shall not be unreasonably withheld, use Customer’s name, mark and/or logo on Scality’s website and/or in Scality marketing materials.
12.9 Excusable Delay. 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 the Agreement or any Order where the failure or delay is due to causes beyond the reasonable control of the Party.
12.10 Independent Relationship. The relationship established by the Agreement is solely that of 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.
12.11 Survival of Certain Provisions. Any provisions of the Agreement that by their nature are intended to survive any expiration or termination will survive expiration or termination of the Agreement for any reason. The terms set forth in the sections entitled License Limitations, Ownership, Confidentiality, Warranty Disclaimer, Limitation of Damages and Remedies shall survive any termination of the Agreement.