END USER SUBSCRIPTION AGREEMENT
(Updated April 8, 2015)
THIS END USER SUBSCRIPTION AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN THE PERSON, COMPANY, OR ORGANIZATION THAT HAS ORDERED THE SERVICES (“YOU” OR “CUSTOMER”) AND NETFORMX INC. AND ITS AFFILIATES (“NETFORMX”). PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE SERVICES. BY USING THE SERVICES, YOU ARE ACCEPTING AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE NOT WILLING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR DO NOT HAVE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT, THEN SELECT THE "I DECLINE" BUTTON AND DO NOT ACCESS OR USE THE SERVICES. UNLESS EXPRESSLY SPECIFIED OTHERWISE BY AN EXECUTED WRITTEN AGREEMENT BY AND BETWEEN YOU AND NETFORMX, THIS AGREEMENT REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE SERVICES BETWEEN YOU AND NETFORMX, AND IT SUPERSEDES AND OVERRIDES ANY PROPOSALS, REPRESENTATIONS, OR UNDERSTANDINGS BETWEEN THE PARTIES.
- DEFINITIONS. For purposes of this Agreement, the following definitions shall apply:
- 1.1. “Affiliate” shall mean any entity that directly or indirectly controls, is controlled by, or is under common control by Netformx.
- 1.2. “Services” shall mean the web-based automated software as a service platform consists of a few features, tools and services, as detailed in the Order Form, to which You are granted with access by Netformx under this Agreement, including any Updates thereto and Support Services.
- 1.3. “Documentation” Shall mean the user manual of the Services, the Support Services Policy (as defined herein) as well as any other materials and documentation provided by Netformx as part of the services, as may be made available by Netformx, at its sole discretion, and as may be amended by Netformx, from time to time, at its sole discretion.
- 1.4. “User(s)” shall mean those individuals authorized by You or on Your behalf to use the Services up to the number allowed under the Order Form.
- 1.5. “Order” shall mean a purchase order or another mutually agreed upon document, whether in hard copy or electronic form, by which You may order subscription to the Services or to any other services of Netformx that accompanies this Agreement and any other document referenced or incorporated into such Order Form, all as agreed and accepted in writing by Netformx.
- 1.6. “Your Data” refers to the data provided by You that resides in Your Services environment, including, without limitation, Third Party Content (as defined herein), files, materials, data, text, audio, video, images or other content and information submitted by You and others to the Services.
- 1.7. “Software” means all software in object code form, licensed to You by Netformx in accordance with the terms and subject to the conditions of a separate Agreement.
- 1.8. “Support Services” shall mean, collectively the following services that may be provided by Netformx to its customers, at its sole discretion: (i) the support for the correction of errors in the Services; and (ii) provision of Updates to the Services. Support Services are purchased and provided as a single service and cannot be purchased or provided independent of each other. Support Services are provided in accordance with the terms of this Agreement and Subcribed Services Policy located at https://www.netformx.com/users/agreements-and-policies/subscribed-services (the “Support Services Policy”).
- (a) “Update(s)” shall mean modifications, corrections, updates and enhancements to the Services, in its sole discretion, makes generally available as part of its Support Services, from time to time, including those intended to correct an error in the Services, and that may or may not include additional features, level of performance and/or functionality for the Services.
- GRANT OF RIGHTS.
- 2.1. Subscription Rights. Subject to the full payment of the fees and subject to the terms and conditions set forth in this Agreement, upon Netformx’s acceptance of Your Order Form and for the duration of twelve (12) consecutive months unless another period was agreed to in writing upon the Order Form (the “Initial Term”), You are granted with a non-exclusive, non-assignable, royalty free, worldwide limited right to use the Services solely for Your internal business operations and subject to the terms of the Agreement. You may allow Your Users to use the Services for this purpose and You are responsible for Your Users’ compliance with this Agreement.
- 2.2. Renewal Term. At the end of the Initial Term, or any subsequent Renewal Term (as defined below), You may renew Your subscription to the Services (to the extent Netformx still offers such Services to its customers and in the scope of provided by Netformx at such time) for additional term of twelve (12) consecutive months unless another term was agreed upon in the Order Form (the “Renewal Term” and collectively with the Initial Term, shall be referred to as “Subscription Term”), provided that (a) You are current on all payments due to Netformx, whether under this Agreement or under any other agreement with Netformx, and (b) You pay Netformx, or its Affiliate (as instructed by Netformx, at its sole discretion), the renewal fee for the respective Renewal Term, according to Netformx’s then-current pricing.
- 2.3. License Restrictions.
- (a) You may not, or permit anyone to: (i) copy, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to or provided with the Services; (ii) translate, modify, make derivative work of, the Services or any of its components and/or outputs; (iii) assign, sublicense, pledge, lease, rent, disclose, publish, sell, market, or share Your rights under this Agreement; (iv) make the Services or materials resulting from the Services available in any manner to any third party for use in the third party’s business operations (unless such access is expressly permitted in writing by Netformx for the specific license or materials from the Services You have subscribed for); (v) use the Services and/or its outputs unlawfully or in any manner not expressly authorized by this Agreement; or (vi) or access or use the Services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to Netformx's.
- (b) You shall not knowingly or willfully use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with Netformx's provision of the Services.
- (c) The rights granted under this Agreement are limited to the number of Users specified in the Order Form. Except as expressly provided herein, no part of the Services (and any outputs thereunder and Documentation) may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means, and You agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services.
- (d) You will not delete or in any manner alter the copyright, trademark, or other proprietary rights notices of Netformx, if any, appearing on or in the Services, screen outputs and prints generated with the Services as delivered to You.
- 2.4. Registration. To obtain access to the Service, You must enroll an account with Netformx in Your name to enable the access and use of it. You are responsible for maintaining the confidentiality of Your user credentials and password. It is strictly prohibited to share Your user credentials and password with any other person; it is Your sole responsibility to protect Your user credentials and password, and to refrain from sharing such with any other person. You understand and agree that You are liable for any activity performed by any person using Your account.
- 2.5. Access through Software. Netformx may grant You access to the Services through the Software, through which, You will be able to upload certain outputs of the Software to the Services, hence You shall have the sole responsibility to obtain any consent, to the extent required, to upload such outputs to the Services and for any use of such outputs.
- 2.6. Consent To Use of Data. You agree that Netformx may collect, use, store and transmit technical and information relating to Your use of the Services, such collected data may identify Your computer (including the Internet Protocol Address), operating system, Services' usage, that may be gathered periodically by Netformx. Netformx may use this information combined with personal information for marketing purposes and to improve its products and services, and also share that data with its third party service providers, provided that, any such use and disclosure shall be made in a form that does not personally identify You and does not make any correlation between You and Your Data. Such data and all other data provided to Netformx and/or collected by Netformx in connection with Your access to, and use of, the Services, are collected, used, stored and transmitted in accordance with Netformx’s Privacy Statement located at https://www.netformx.com/users/agreements-and-policies/privacy-policy. To the extent that anything in this Section conflicts with the terms of Netformx’s Privacy Statement, the terms of the Privacy Statement shall prevail.
- 2.7. Marketing. Netformx has the right to name You as a customer in marketing materials for the purpose of promoting Netformx, the Services or any other related services or products of Netformx.
- PROVISION OF THE SERVICES.
- 3.1. Suspension. Netformx reserves the right, to temporarily suspend or terminate Your access to Your Data at any time in its sole discretion, with or without cause, and with or without notice, without incurring liability of any kind. In addition, Netformx may add or remove functionalities or features to the Service, and may suspend or stop providing any features associated with the Services.
- 3.2. Removal of Data. Netformx does not tolerate any infringement of copyright or other intellectual property rights by Your Data or otherwise violation of this Agreement and will respond to notices of alleged copyright infringement that comply with the DMCA and are properly provided to Netformx. Netformx does not pre-screen Your Data, however, Netformx shall have the right to remove Your Data that it becomes aware of and determines to be harmful, offensive or otherwise in violation of the Agreement and to terminate repeat infringers, all as determined in Netformx Terms and Conditions located at: https://www.netformx.com/users/agreements-and-policies/terms-of-use.
- YOUR OBLIGATIONS.
- 4.1. Compliance with Laws. You will comply with all applicable laws, statutes, regulations and ordinances.
- 4.2. Compliance with Copyrights. You will: (a) be solely responsible for the nature, quality and accuracy of Your Data; (b) ensure that Your Data (including the storage or transmission thereof) complies with this Agreement and any and all applicable laws, and regulations; (c) promptly handle and resolve any notices and claims relating to You Data, including any notices sent to You by any person claiming that any of You Data violates any person's rights, such as take-down notices pursuant to the Digital Millennium Copyright Act of 1998 (the “DMCA”) and any other notices; and (d) maintain appropriate security, protection and backup copies of You Data, which may include, Your use of additional encryption technology to protect You Data from unauthorized access. Netformx will have no liability of any kind as a result of the deletion of, correction of, destruction of, damage to, loss of or failure to store or encrypt You Data.
- 4.3. Third Party Contents. In order for Netformx to provide You with certain Services, it is required that You will obtain an access to information and content of third parties (the “Third Party Content”) that is required in connection with the Services, such sharing of access and/or disclosure of Third Party Content shall be at your own risk and responsibility, and You hereby represent and warrant to Netformx that You have the right to include such Third Party Content in Your Data.
- INTELLECTUAL PROPERTY RIGHTS.
- 5.1. Netformx Ownership. The foregoing rights pursuant to Section 2 gives You limited subscription to access and use the Services. You acknowledge and agree that all right, title and interest, including, without limitation, all copyrights, trademarks, trade names, logos and service marks, trade secrets and know how patents, licenses, designs and algorithms, utility models, and all improvements thereto, and any other intellectual property rights, in and to, the Services and the Documentation (including but not limited to any images, photographs, animations, video, audio, music, text, and “applets” incorporated into the Services), are owned solely by Netformx (or of its third party licensors). All rights not specifically granted to You under this Agreement, including, without limitations, all copyrights, trademarks, trade names, logos and service marks, trade secrets and know how patents, licenses, designs and algorithms, utility models, and all improvements thereto, and any other intellectual property rights are reserved by Netformx and its licensors.
- 5.2. Your Ownership. Except for material that Netformx licenses to You under a separate agreement, Netformx does not claim ownership of Your Data that is transmitted, stored, or processed as part of the Services. Netformx also does not control, verify, or endorse Your Data that You and others make available on the Services. You represent and warrant that: (a) You have all the rights in Your Data necessary for the purpose of this Agreement and the use of the Services and, (b) the storage, use or transmission of You Data does not violate any law or this Agreement.
Each party (the “Disclosing Party”) may disclose to the other (the “Receiving Party”) certain confidential technical and business information which the Disclosing Party desires the Receiving Party to treat as confidential. “Confidential Information” means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally, electronically or by inspection of tangible objects (including without limitation documents, prototypes, equipment, technical data, trade secrets and know-how, product plans, Services, services, suppliers, customer lists and customer information, prices and costs, markets, software, databases, developments, inventions, processes, formulas, technology, employee information, designs, drawings, engineering, hardware configuration information, marketing, licenses, finances, budgets and other business information), which is designated as “Confidential”, “Proprietary” or some similar designation at or prior to the time of disclosure, or which should otherwise reasonably be considered confidential by the Receiving Party. Confidential Information may also include information disclosed to a Disclosing Party by third parties. Confidential Information shall not, however, include any information which the Receiving Party can document (i) was publicly known and made generally available prior to the time of disclosure by the Disclosing Party or an authorized third party; (ii) becomes publicly known and made generally available after disclosure through no action or inaction of the Receiving Party in violation of any obligation of confidentiality; (iii) is already in the possession of the Receiving Party at the time of disclosure; (iv) is lawfully obtained by the Receiving Party from a third party without a breach of such third party's obligations of confidentiality; or (v) is independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information. Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use or divulge to any third person any such Confidential Information. Without derogating from the foregoing, the Services contain valuable, Confidential Information and trade secrets and unauthorized use or copying is harmful to Netformx, hence may not, in any manner, be disclosed or shared by You with any third party.
- TRIAL US OF SERVICES.
If specified in the Order Form, Netformx may, at its sole and absolute discretion, give You access to certain Services for trial, nonproduction purposes subject to the terms and conditions of the Agreement. Services acquired for trial purposes are provided “as is” and Netformx does not offer any warranties for such Services under trial. Notwithstanding anything in this Agreement to the contrary, Sections 9.4, 10.1 and 10.2, hereto shall not apply to the Services during a trial period.
- PAYMENT TERMS.
- 8.1. Payment Terms. Unless explicitly set forth in this Agreement, all fees and other amounts due under this Agreement are non-cancelable and non-refundable. Unless otherwise agreed to by the parties in writing, You shall pay all fees or amounts within 30 days of the date of the invoice. Without prejudice to any other rights and remedies to which Netformx may be entitled, a late fee shall be charged on any overdue amounts and any other fees and expenses not paid as provided under this Agreement at the rate of one and one percent (1%) per month, or the highest rate allowable under applicable law, whichever is less, commencing with the date payment was due.
- 8.2. Taxes. The fees and all other amounts due as specified in this Agreement and associated Order Form(s) and price lists are net amounts to be received by Netformx, exclusive of all taxes, duties, and assessments, including without limitation all sales, property, import duty, withholding, VAT, excise, ad valorem, use taxes and other taxes based on the Services subscription provided under this Agreement (collectively, the “Taxes”), and are not subject to offset or reduction because of any Taxes incurred by You or otherwise due as a result of this Agreement. You shall be responsible for and shall pay directly, any and all Taxes relating to the performance of this Agreement, provided that this Section 8.2 shall not apply to taxes based solely on Netformx’ income.
- TERM AND TERMINATION.
- 9.1. Expiration of Subscription Term. If the Services were not renewed pursuant to this Agreement, upon the end of the respective Subscription Term (as applicable) and the Services hereunder, This Agreement and Your right to access or use the Services shall terminate.
- 9.2. Termination for Material Breach. Netformx may terminate this Agreement upon written notice if You materially breach this Agreement and fail to cure such breach within thirty (30) days following delivery of written notice by Netformx specifying the breach. No termination under this Section 9.2 shall relieve You of Your obligation to pay all fees and payments that have accrued or are otherwise owed by You under any order.
- 9.3. Termination for Insolvency. Notwithstanding the foregoing, Netformx may immediately terminate this Agreement and related Services (i) on the institution by or against You of insolvency, receivership or bankruptcy proceedings, which have not been cancelled within forty five (45) days following such institution; (ii) on You making an assignment for the benefit of creditors, or (c) on Your insolvency or ceasing to do business, except in case of an internal reorganization.
- 9.4. Export of Your Data. At your request, and for a period of up to 60 days after the termination of this Agreement, Netformx may permit you to access the portion of the Services as required, solely to the extent necessary for You to retrieve a file of Your Data then in the Services environment. You agree and acknowledge that Netformx has no obligation to retain Your Data and that Your Data may be irretrievably deleted after 60 days following the termination of this Agreement.
- LIMITED WARRANTY; DISCLAIMER; EXCLUSIVE REMEDY.
- 10.1. Limited Warranty. Netformx warrants that the Services will perform in all material respects in accordance with the Documentation associated therewith. If the Services provided to You during the Subscription Term were not performed as warranted, You must provide written notice to Netformx as specified in the ordering document no later than five (5) business days after your revealed such non-compliance.
- 10.2. Exclusive Remedies. Netformx will use reasonable efforts to remedy any prolonged significant non-conformance in the Services which is reported to Netformx pursuant to Section 10.1 above, and that Netformx can reasonably identify and confirm. Netformx at its discretion will repair, replace or provide a reasonable work around to any such non-conforming or defective Services, or in extreme conditions, grant a credit to You in an amount as determined by Netformx, at its sole discretion. This Section 10.2 sets forth Your sole and exclusive remedy and Netformx's entire liability for any breach of warranty or other duty related to the Services. Any unauthorized modification of the Services, tampering with the Services, use of the Services inconsistent with the accompanying Documentation, or related breach of this Agreement voids the warranty.
- 10.3. Disclaimer. NETFORMX DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, THAT NETFORMX WILL CORRECT ALL SERVICES ERRORS, OR THAT THE ALGORITHMS USED IN THE SERVICES WILL BE COMPLETE OR ACCURATE. YOU ACKNOWLEDGE THAT NETFORMX DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, INTERRUPTIONS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. NETFORMX IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NETFORMX, ITS EMPLOYEES, DISTRIBUTORS, DEALERS OR AGENTS SHALL INCREASE THE SCOPE OF THE ABOVE WARRANTIES OR CREATE ANY NEW WARRANTIES. WHILE NETFORMX MAKES REASONABLE EFFORTS TO ENSURE THAT YOU’RE YOUR DATA WILL BE SECURE, NETFORMX DOES NOT GUARANTEE THAT THE SERVICES WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, “WORMS”, “TROJAN HORSES” OR OTHER HARMFUL COMPONENTS, OR FROM INTERFERENCE, HACKING OR OTHER SECURITY INTRUSIONS. YOU SHOULD BE SURE TO BACK UP YOUR OWN SYSTEM PERIODICALLY TO ENSURE THAT ALL OF YOUR DATA IS AVAILABLE TO YOU IN THE EVENT OF ANY LOSS OR DAMAGE.
- 10.4. Third Party Content Disclaimer. Content. Netformx makes no guarantees concerning the accuracy, reliability, currency, or quality of the Third Party Content, including any content, displayed through or while using the Services. Netformx shall not be liable for the performance of software and systems owned by any third parties or for services and information provided, maintained or controlled by third parties, including but not limited to compilations of such information and Third Party Content in the Services.
- LIMITATION OF LIABILITY; INDEMNITY.
- 11.1. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL NETFORMX AND/OR ITS EMPLOYEES, DISTRIBUTORS, DEALERS OR AGENTS BE LIABLE TO YOU OR YOUR AFFILIATES, EMPLOYEES, DISTRIBUTORS, DEALERS OR AGENTS PARTY, FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING FROM THIS AGREEMENT, THE ACCESS OR USE OF THE SERVICES AND YOUR DATA, WHETHER RESULTING FROM TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, PRODUCT LIABILITY, OR OTHER FORM OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. NETFORMX ITS AFFILIATES, AND THEIR RESPECTIVE EMPLOYEES', DISTRIBUTORS', DEALERS' AND AGENTS' AGGREGATE TOTAL LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE FEES PAID TO NETFORMX UNDER THIS AGREEMENT, IN THE TWELVE (12) MONTHS PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE. You expressly assume all responsibility for any damages, lost data, lost profits and other consequential damages that may result in any way out of this Agreement, including without limitation, use of the Services. You expressly agree that the fees payable to Netformx hereunder have been negotiated and agreed to by Netformx based in part upon the foregoing limitation of liability.
- 11.2. Indemnity. Your use of the Services, including without limitation, use of any outputs of the Services, is at Your sole discretion and risk and You assume any and all liability in connection with such use. You will indemnify and hold Netformx, its officers, directors, agents, subsidiaries, joint ventures and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of: (i) Your breach of this Agreement, (ii) Your violation of any law or the rights of a third party, including, without limitation, privacy rights and intellectual property rights; (iii) Your use of the Services and/or its outputs, including, without limitation, Your Data and any reports or other materials containing Your Data; (iv) Your failure to obtain required consents, authorization, permit or otherwise for the use of Your Data in connection with the Services.
- GOVERNMENT RESTRICTED RIGHTS.
The Services are provided with "RESTRICTED RIGHTS." Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in FAR52.227-14 and DFAR252.227-7013 et seq. or its successor. Use of the Services by the U.S. Government constitutes acknowledgment of Netformx's proprietary rights therein. Contractor or Manufacturer is Netformx.
- 13.1. Governing Law and Exclusive Jurisdiction. This Agreement shall be governed and construed in accordance with the laws of the State of California without regard to conflict of laws principles. You agree to the exclusive jurisdiction of the courts located in Santa Clara County, California, USA for all disputes relating to or arising out of this Agreement, including issues relating to the Services.
- 13.2. No Assignments. You may not sell, lease, assign, or otherwise transfer, in whole or in part, your rights under this Agreement without the express written consent of Netformx, provided, however, that such consent shall not be unreasonably withheld if you assign this Agreement to any acquirer or Affiliate (as the case may be) in connection with a merger, acquisition, or sale of all or substantially all of our assets. Netformx may assign this Agreement, without obtaining Your approval, to any of its Affiliates or to any acquirer of all or substantially all of such its share capital, business assets whether by merger, acquisition or otherwise. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
- 13.3. Entire Agreement. This Agreement constitutes the final and complete understanding between the parties, and replaces and supersedes all previous oral or written agreements, understandings, or arrangements, including, without limitation, previous versions of End User Subscription Agreement(s) for subscription to the Services. In case of contradiction between the provisions of this Agreement and any other written agreement between the parties hereto, the provisions of this Agreement shall prevail, unless explicitly stated otherwise in a written agreement signed by both parties.
- 13.4. Modifications. Netformx may amend this Agreement at any time by providing You a reasonable notice, including without limitation by posting an amended version of this Agreement at https://www.netformx.com/users/agreements-and-policies , in such case, You shall have the sole responsibility to review such amended version of Agreement. The amended terms and conditions of this Agreement shall bind You upon their effective date.
- 13.5. Unenforceable Terms shall not affect the Enforceability of the Remaining Terms. Should any term of this Agreement be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining terms hereof.
- 13.6. Export Restrictions. You agree to comply with all applicable foreign, federal, state and local laws and regulations governing Your use of the Service, including upload and any other use or storage of Your Data. Without limiting the foregoing, certain Services are subject to export controls of the United States and other countries (“Export Controls”). Export or diversion contrary to such Export Controls is prohibited. U.S. law prohibits export or re-export of the software or technology to specified countries or to a resident or national of those countries (“Prohibited Country” or “Prohibited Countries”). It also prohibits export or re-export of the software or technology to any person or entity on the U.S. Department of Commerce Denied Persons List, Entities List or Unverified List; the U.S. Department of State Debarred List; or any of the lists administered by the U.S. Department of Treasury, including lists of Specially Designated Nationals, Specially Designated Terrorists or Specially Designated Narcotics Traffickers (collectively, the “Lists”). U.S. law also prohibits use of the software or technology with chemical, biological or nuclear weapons, or with missiles (“Prohibited Uses”). You represents and warrants that it is not located in, or a resident or national, of any Prohibited Country; that it is not on any Lists; that it will not use the software or technology for any Prohibited Uses; and that it will comply with Export Controls.
- 13.7. Failure to Enforce Does Not Constitute Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
- 13.8. Survival. Any rights or remedies of Netformx respecting payment of fees by You and the provisions of Sections 1, 4, 5, 6, 9, 10, 11 and 13 shall survive the termination of this Agreement.
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