ASAP SOFTWARE LICENSE AGREEMENT
1. Scope of Agreement
3. License Grants
4. License Restrictions
5. Service Providers
7. Work for Hire Ownership
8. License Fees
9. Maintenance and Support
10. Adequate Hosting Environment
11. Configuration Services
12. Software Verification and Audit
14. Limitation of Liability
16. Confidential Information
20. Government End User Rights
22. Third Party Content Disclaimer
23. Authorized Partners
24. Choice of Law and Disputes
26. Agreement Term and Termination
27. Common Use Definitions
1. SCOPE OF AGREEMENT
THIS "AUTOMATED SPLUNK ADMIN PORTAL" ("ASAP") SOFTWARE LICENSE AGREEMENT (“AGREEMENT”) GOVERNS THE LICENSING, INSTALLATION AND USE OF ASAP SOFTWARE.
BY DOWNLOADING AND/OR INSTALLING ASAP SOFTWARE:
(a) you are indicating that you have read and understand this Agreement, and agree to be legally bound by it on behalf of the company, government, or other entity for which you are acting (for example, as an employee OR government official) or, if there is no company, government or other entity for which you are acting, on behalf of yourself as an individual; and
(b) you represent and warrant that you have the authority to act on behalf of and bind such company, government or other entity (if any).
WITHOUT LIMITING THE FOREGOING, YOU (AND YOUR ENTITY, IF ANY) ACKNOWLEDGE THAT BY SUBMITTING A PURCHASE ORDER ("Order") IN ANY FORM FOR THE ASAP SOFTWARE IN ANY FORMAT AND FOR ANY USE, YOU (AND YOUR ENTITY (IF ANY)) HAVE AGREED TO BE BOUND BY THIS AGREEMENT.
As used in this Agreement, the term "MDI” refers to Machine Data Insights, Inc., a Florida Corporation, with its principal place of business at 2425 S Parkview Ave, Orange City, Florida 32763, U.S.A.; and “Customer” refers to the company, government, or other entity on whose behalf you have entered into this Agreement or, if there is no such entity, you as an individual.
MDI reserves the right to change the location of its principal place of business at any time and without prior or other notice in writing or other communication form to Customer. Customer understands and acknowledges that this Agreement remains in full force and effective regardless of where the MDI principal office may reside at any given time.
Customer understands and acknowledges that the MDI company and the ASAP Software Product and any other software products and services owned and provided by MDI are completely separate entities and products from the Splunk company and the software products and services owned and provided by Splunk. "Splunk" refers to the software product owned and sold and supported by Splunk Inc., a Delaware corporation, with its principal place of business at 270 Brannan Street, San Francisco, California 94107, USA. Neither MDI or Splunk have any business or other affiliations with each other, and NONE of the statements in this license agreement should be interpreted as having or placing any restrictions upon any existing or future agreements or bindings between Customer and Splunk, nor between MDI and either Customer or Splunk; nor does this Agreement indicate any relationship between or legal or other stipulation or obligation upon either of the two companies (MDI and Splunk) and their respective products and services or any kind of endorsement or degnegration of either companies products.
Capitalized terms used but not otherwise defined in this Agreement have the meanings set forth in Section 27 (COMMON USE DEFINITIONS).
2.1 ASAP Software Product (the "Software"). The software included in this Agreement includes: a) the "ASAP User Interface" framework which includes but is not limited to web-based user forms and associated configuration and formatting software and utilities; b) the "ASAP Back-End" framework which includes but is not limited to scripts and associated configuration software and utilities designed to function as and within the context of a Splunk compatible "app" running on a server equipped with the Splunk software product which the customer has seperately licensed, installed, and configured; c) any subsets of the ASAP Back-End Framework (an "ASAP Client") which may be installed on particular Splunk components, including but not limited to a Cluster Master, Deployer, or Deployment Server to provide ASAP REST API Endpoints and other ASAP-related scripts and utilities to support ASAP automation and monitoring operations; d) "ASAP Procedures", which are script files containing logic and instructions for using ASAP and Splunk REST API Endpoints to accomplish a particular monitoring or configuration task in an automated fashion; and e) "ASAP Customizations" (defined in Section 2.3) that may have been developed for hire or free to further support a particular Customer Business Purpose.
2.2 Purchased Software. The software included in this Agreement includes, but is not limited to, the various components the ASAP Software Product as defined in (2.1) above. The ASAP Software Product was designed and is intended to be sold to Customer under License Grants and for License Fees as defined in this Agreement, and as such constitutes the Purchased Software.
2.3 ASAP Customizations. MDI may, upon its own volition or upon request by Customer, for free or for hire, develop Customizations that add or enhance functionality to the ASAP Software Product (Purchased Software) or to develop new Procedures or modify existing Procedures to allow the Purchased Software to meet or better meet a particular Customer Business Purpose.
2.4 Documentation. MDI will provide end-user Documentation to guide Customer in installing, configuring, and utilizing the Purchased Software; this documentation may include but is not limited to an ASAP User Manual, ASAP REST API Reference Guide, and separate documention units to support ASAP Customizations or ASAP Procedures that may be supplied by MDI with the Purchased Software or developed for free or for hire for Customer to expand or enhance ASAP functionality to meet or better meet a specific Customer Business Purpose.
2.5 MDI Materials. Materials belonging to MDI and included in this Agreement are defined as and include but are not limited to a) any and all software created or supplied by MDI, including the ASAP Framework and any Customizations and Procedures; b) any and all Documentation in written or audio or audio-visual form; c) written and audio or audio-visual marketing matterials; d) MDI logos and symbols including software product logos and symbols; and e) any other tangible entity that can reasonably be associated with MDI and any of its products and services.
2.6 Customer Developed Software. Customer may freely develop or have developed for hire any ASAP-compatible Procedures or other ASAP-compatible software modules, or may develop software that uses REST API Endpoints made available by the ASAP Purchased Software to accomplish Customer Business Purposes. Software developed solely by Customer (and not developed by MDI) to work with the Purchased Software remains the property of Customer, and MDI claims no rights regarding ownership, use, or reuse of Customer developed software. However, MDI is not responsible for ensuring or guaranteeing that software developed by Customer that is intended to work in conjunction with Purchased Software will work as desired; nor is MDI responsible in any way for any adverse effects or financial or other losses or reduced levels of safety that Customer developed software (not developed by MDI) may have on Customer properties, operations, revenues, legal obligations, or any other concerns even if Customer developed software was designed to work in conjunction with and is used with Purchased Software.
2.7 Separate Software Component. The Customer understands and acknowledges that the ASAP Software Product is a unique and separate software product from Splunk software product(s), and that a purchase of the ASAP software product and any related utilities does not include the prerequisite Splunk software or hosting hardware; nor does it include any Splunk licensing or other requirements for the Splunk operating environment, and that these essential components must be provided by the Customer under their respective licensing and other agreements with other entities for the Purchased Software to operate.
3. LICENSE GRANTS
3.1 Purchased Software. Subject to Customer’s compliance with this Agreement, including Customer’s timely payment of all License Fees, MDI grants to Customer a nonexclusive, worldwide, nontransferable, nonsublicensable license during the applicable Term to install and use the Purchased Software within the defined Licensed Term and any Functional Capacity specification solely for Customer’s Internal Business Purposes.
3.2 Evaluation Software. If the applicable Order specifies that any Software is provided under an evaluation license or a free trial license, then subject to Customer’s compliance with this Agreement, MDI grants to Customer a nonexclusive, worldwide, nontransferable, nonsublicensable license during the applicable Term to install and use the Evaluation Software within the defined Licensed Term and any Functional Capacity specification solely for evaluating whether Customer wishes to purchase a commercial license for such Software. Notwithstanding anything to the contrary in this Agreement, MDI does not provide maintenance and support, warranty, or indemnification with respect to Evaluation Software.
3.3 Test and Development Software. If the applicable Order specifies that any Software is provided under a test and development license, then subject to Customer’s compliance with this Agreement, MDI grants to Customer a nonexclusive, worldwide, nontransferable, nonsublicensable license to install and use the Test and Development Software within the defined Licensed Term and any Functional Capacity specified in a non-production system for ASAP Software Product testing, ASAP Customizations development testing or ASAP Procedures development testing, software product pre-production testing and staging, testing use cases, or other non-production use. In no way should the Test and Development Software be used for any revenue generation, commercial activity or other productive business or purpose. Notwithstanding anything to the contrary in this Agreement, MDI does not provide maintenance and support, warranty, or indemnification with respect to Test and Development Software.
3.4 Free Software. MDI may make certain Software available for license without charge, and such Free Software may have limited features, functions, or other limitations of any kind. Subject to Customer’s compliance with this Agreement, MDI grants to Customer a nonexclusive, worldwide, nontransferable, nonsublicensable license during the applicable Term to install and use the Free Software within the defined Licensed Term and any Functional Capacity specified solely for Customer’s Internal Business Purposes. Notwithstanding anything to the contrary in this Agreement, MDI does not provide maintenance and support (Section 9), warranty (Section 13), or indemnification (Section 15) with respect to Free Software.
3.5 ASAP Customizations. Subject to Customer’s compliance with this Agreement, including Customer’s timely payment of all License Fees (if any) or Development Fees, MDI grants to Customer a nonexclusive, worldwide, nontransferable, nonsublicensable license to use ASAP Customizations (including ASAP Procedures) solely in connection with applicable Software that Customer has licensed from MDI, subject to the same limitations and restrictions (including with respect to Licensed Term and Functional Capacity) that apply to the Software with which the ASAP Customizations are used. Notwithstanding the foregoing, if any ASAP Customization is provided to Customer under a separate license agreement that grants Customer more permissive or broader rights with respect to such ASAP Customization (e.g., a separate license agreement that is provided to Customer as part of the download or other delivery process for such ASAP Customization), then that separate license agreement, and not this Agreement, will govern Customer’s installation and use of such ASAP Customization (but, for clarity, this Agreement will apply to all other ASAP Customizations).
3.6 Open Source Software. Customer acknowledges that certain Software may contain Open Source Software. Open Source Software may be identified in the end user Documentation or in a list of the Open Source Software provided to Customer upon Customer’s written request. Any Open Source Software that is delivered to Customer as part of Purchased Software, and which may not be taken out of the Purchased Software or used separately from the Purchased Software is covered by the warranty, support and indemnification provisions applicable to Purchased Software. Customer acknowledges that specific terms required by the respective licensor of the Open Source Software may apply to the use of Open Source Software, which terms shall be included in the Documentation; however, these terms will not: (a) impose any additional restrictions on Customer's use of the Purchased Software, or (b) negate or amend MDI’s responsibilities with respect to Purchased Software.
3.7 Third Party Content. Customer acknowledges that the ASAP Software Product may contain non-Open Source, Third Party Content which MDI has purchased or otherwise procured to provide certain functional aspects of the ASAP Software Product, and understands that MDI is solely responsible for purchasing any requisite licensing or for meeting any other requirements for all Third Party Content that may be in use in the Purchased Software, and that Customer is under no legal or other obligation to purchase or otherwise support the Third Party Content. MDI is solely responsible for any legal, financial, or any other injunctions or obligations for the inclusion and use of Third Party Content and will not hold Customer responsible or consider Customer involved with any such injunctions or obligations so long as Customer has complied faithfully and in full with this Agreement. Furthermore, these terms will not: (a) impose any additional restrictions on Customer's use of the Purchased Software, or (b) negate or amend MDI’s responsibilities with respect to Purchased Software.
4. LICENSE RESTRICTIONS
Unless otherwise expressly permitted by MDI, Customer will not and Customer has no right to: (a) copy any MDI Materials (except as required to run the Software and for reasonable backup purposes); (b) modify, adapt, or create derivative works of any MDI Materials; (c) rent, lease, loan, resell, transfer, sublicense, distribute, disclose or otherwise provide any MDI Materials to any third party; (d) decompile, disassemble or reverse-engineer any MDI Materials, or determine or attempt to determine any source code, algorithms, methods or techniques embodied in any MDI Materials, except to the extent expressly permitted by applicable law notwithstanding a contractual prohibition to the contrary; (e) access or use any Disabled Materials; (f) provide to any third party the results of any benchmark tests or other evaluation of any MDI Materials without MDI’s prior written consent; (g) attempt to disable or circumvent any license key or other technological mechanisms or measures intended to prevent, limit or control use or copying of, or access to, any MDI Materials (including in order to gain access to any Disabled Materials); (h) remove or obscure any copyright, trademark, patent, or other proprietary notices, legends, logos, or symbols from any MDI Materials; (i) exceed the Licensed Term or Functional Capacity or violate other license limitations identified in this Agreement; (j) separately use any of the applicable features and functionalities of the MDI Materials with external applications or code not furnished by MDI or any data not processed by the Software, except otherwise specifically permitted in the Documentation; (k) misuse the Software or use the Software for any illegal, harmful, fraudulent, or offensive purposes; (l) otherwise access or use any MDI Materials except as expressly authorized in this Agreement; or (m) encourage or assist any third party to do any of the foregoing. Customer acknowledges that the Software may be configured to display warnings, reduce available functionality, and/or cease functioning if unauthorized or improper use is detected, including if the Term expires or any Licensed Term or Functional Capacity is reached or exceeded.
5. SERVICE PROVIDERS
Customer may permit its authorized consultants, contractors, and agents (“Service Providers”) to access and use the Software solely on Customer’s behalf in connection with providing services to Customer, subject to the terms and conditions of this Agreement. Any such access or use by a Service Provider will be subject to the same limitations and restrictions that apply to Customer under this Agreement, and Customer will be jointly and severally liable for any Service Provider’s actions relating to or use of the Software. For avoidance of doubt, the aggregate use by Customer and all of its Service Providers must not exceed the Licensed Term or Functional Capacity and nothing in this Section 5 is intended to or will be deemed to increase any defined Licensed Term or any Functional Capacity specification.
MDI owns all worldwide right, title and interest in and to the MDI Materials, including all software source code and all related Intellectual Property Rights. Except for the licenses expressly granted to Customer in Section 3, Customer will not acquire or claim any right, title or interest in or to any MDI Materials or related Intellectual Property Rights, whether by implication, operation of law or otherwise. Notwithstanding anything to the contrary, the Software is licensed, not sold, to Customer. To the extent that Customer provides any Feedback, Customer grants to MDI a perpetual, irrevocable, worldwide, nonexclusive transferable, sublicensable, royalty-free, fully paid-up right and license to use and commercially exploit the Feedback in any manner MDI deems fit.
7. WORK FOR HIRE OWNERSHIP
Unless specified otherwise in a separate License Agreement assigned to a for-hire development order by Customer, ASAP Customizations or ASAP Procedures or any other software works designed to add or enhance functionality to or with the Purchased Software that are created by MDI for Customer for hire are the non-exclusive property of Customer to do with what they deem appropriate beyond and regardless of the status of any Term or Perpetual License established under this Agreement. However, MDI retains the right to use or reuse any part or the entirety of the derived work(s) for its own purposes, without limitation, and without notification to Customer, and that this right extends beyond this or any other Agreement into perpetuity such that changes or enhancements to the features or functionality of the Purchased Software is not restricted by any Customer Agreement or other limitations.
8. LICENSE FEES
Customer will pay all license fees set forth in the Order (the “License Fees”) for the Software delivered to Customer no later than thirty (30) days after the date of MDI’s applicable invoice. Customer will also pay all content subscription fees as may be applicable to the Purchased Software, as identified in the Order (the “Content Subscription Fees”, collectively together with License Fees, the “Fees”). Without limitation of MDI’s other termination rights, if Customer fails to pay the Fees when due, then MDI may terminate this Agreement and all licenses granted hereunder by notice to Customer. All Fees are non-refundable once paid. Any fees and payment terms for ASAP Customizations not included in the Order will be as set forth on the download page for such ASAP Customizations.
8.1 Taxes. Customer will pay any and all federal and/or state taxes that may be applicable from the purchase of MDI Software and Support Services and any ASAP Customizations or other for-hire development fees based on the federal, state, and/or local laws that may apply to a particular software and service sales situation. The amount of any applicable taxes will be calculated and added to the invoice(s) provided to Customer by MDI, and these tax fees must be paid in addition to and along with any License Fees, Support Services, ASAP Customizations, or other for-hire development services rendered by MDI in order for the invoice to be considered paid in full. Customer should not expect or ask MDI to pay the taxes on a separate invoice.
8.2 Payment of Taxes. MDI is responsible for collecting any applicable federal, state, and/or local taxes from Customer for any taxable License Fees, Support Services, ASAP Customizations, or other for-hire development services, and MDI is fully and wholly responsible for paying these collected taxes to the applicable federal, state, and/or local entities within the timeframes outlined by the federal, state, or local guidlines. Customer will not be held liable for any taxes paid to MDI for License Fees and Services outlined in 8.1 above which MDI receives from Customer and does not pay in full or within the required timeframes.
8.3 Tax Rate Miscalculations. In the unlikely event that MDI fails to accurately calculate any applicable federal, state, and/or local taxes that should have been applied to original invoices to Customer for MDI License Fees, Support Services, ASAP Customizations, or other for-hire development work, MDI will calculate the correct amount of taxes that should have been collected from Customer and notify Customer in writing with a corrected invoice that includes either: a) the additional taxes Customer should remit to MDI, or: b) a refund to Customer from MDI for any overpayment of taxes. Customer understands and acknowledges that Customer is wholly and exclusively responsible for full payment of any and all federal, state, and/or local taxes that may result from all purchases of Software and Services from MDI, and that MDI is responsible for collection of subject taxes from Customer, and that MDI is reponsible for payment of said taxes to the appropriate federal, state, or local entities, and that this tax payment responsibility on the part of Customer remains in effect in full for perpetuity regardless of whether MDI or any other entity fails to collect said taxes in timely fashion. In the case that a penalty is incurred for late payment of any federal, state, or local taxes due to a calculation error on the part of MDI, MDI, and not Customer, is responsible for paying these pentalties.
9. MAINTENANCE AND SUPPORT
If Customer has purchased maintenance and support for the Purchased Software as set forth in the Order (the “Support Services”), then MDI will provide the level of maintenance and support included in the Order in accordance with the terms and conditions set forth below.
9.1 Services. Subject to Customer’s timely payment of the applicable annual Support fees set forth in the Order (the “Support Fees”), MDI will provide the level of Support identified in the Order in accordance with the Support descriptions set forth below. No other maintenance or support for the Software is included.
9.2 Support Fees. Support Fees will be due and payable in accordance with the Order. MDI will notify (electronically or otherwise) Customer of the then-current annual Support Fee for Customer’s level of Support in each notice of term renewal. Support Fees are non-refundable once paid.
9.3 Exclusions. MDI will have no obligation of any kind to provide Support for issues caused by or arising out of any of the following (each, a “Licensee-Generated Error”): (i) modifications to the Software not made by MDI; (ii) use of the Software other than as authorized in the Agreement or as provided in the Documentation for the Software; (iii) damage to the machine on which the Software is installed; (iv) Customer’s continued failure to use the Software without reference to the Documentation; (v) versions of the Software other than the Supported Version (defined in Section 9.6.6); (vi) third-party products not expressly supported by MDI and described in the Documentation; or (vii) conflicts related to replacing or installing hardware, drivers, and software that are not expressly supported by MDI and described in the Documentation. If MDI determines that support for an issue caused by a Licensee-Generated Error, MDI will notify Customer as soon as reasonably possible under the circumstances. If Customer agrees that MDI should provide support for the Licensee-Generated Error via a confirming email, then MDI will have the right to invoice Customer at MDI’s then-current time and materials rates for any such support provided by MDI.
9.4 Support for ASAP Customizations. Subject to Customer’s payment of the applicable annual Support Fees, if Customer is a licensee of an ASAP Customization supported by MDI, MDI will provide an Initial Response and Acknowledgement in accordance with the terms as described in the Support Programs (as defined below). Updates for the Software will be provided when made available. No other sections in these Terms and Conditions apply to ASAP Customizations.
9.5 Language Restrictions. Support is delivered only in English.
9.6 SUPPORT DESCRIPTIONS
9.6.1 MDI Support. Customer’s Order will identify the level of Support which Customer purchases for the applicable Purchased Software. Support cases are handled based on case priority levels as described in the Support Programs. When submitting a case, Customer will indicate the priority for initial response by logging the case by email or online (if applicable), in accordance with the priority guidelines set forth in the Support Programs. When the case is received, MDI Support may change the priority if the issue does not conform to the criteria for the selected priority and will provide Customer with notice (electronic or otherwise) of such change.
9.6.2 Authorized Support Contacts. Support will be provided solely to the authorized individual(s) specified by Customer that MDI will communicate with when providing Support (“Support Contacts”). MDI strongly recommends that Customer’s support contact(s) be trained on the Purchased Software. Customer’s Order will indicate a maximum number of authorized Support Contacts for Customer’s license level. Customer will be asked to designate Customer’s authorized support contacts, including their primary email address and phone number, following MDI’s acknowledgment of Customer’s Order.
9.6.3 Defect Resolution. Should MDI in its sole judgment determine that there is a defect in the Purchased Software, it will, at its sole option, repair that defect in the version of the Software that Customer is currently using or instruct Customer to install a newer version of the Software with that defect repaired. MDI reserves the right to provide Customer with a workaround in lieu of fixing a defect should it in its sole judgment determine that it is more effective to do so.
9.6.4 Support Methods and Hours. Support is provided via telephone, email and web portal. Support will be delivered by a member of MDI’s technical support team during the regional hours of operation listed in the Support Programs page(s) on the MDI website and/or provided in the Purchased Software Documentation.
9.6.5 Customer’s Obligation to Assist. Should Customer report a purported defect in the Purchased Software to MDI, MDI may require Customer to provide them with the following information: (a) a general description of the operating environment, (b) a list of all hardware components, operating systems and networks, (c) a reproducible test case, and (d) any log files, trace and systems files. Customer’s failure to provide this information may prevent MDI from identifying and fixing the purported defect.
9.6.6 Software Upgrades and Software Support Policy. When available, MDI provides updates, upgrades, maintenance releases and license keys only to MDI Support customers. Software comes with a three-digit number version. The first digit represents the major release (i.e., upgrade), the second digit identifies the minor releases (i.e., updates) and the third digit identifies the maintenance releases. With a new major version, the number to the left of the decimal is changed and for minor releases, the number to the right of the decimal point is increased. Subject to the foregoing, MDI provides Support for the duration specified in the Support Policy following the initial release date of each respective major or minor version. The current version and the releases within the support period will be “Supported Versions”.
9.7 Changes in Support and Software. Customer acknowledges that MDI has the right to discontinue the manufacture and development of any Software and the Support for any Software, including the distribution of older Software versions, at any time in its sole discretion, provided that MDI agrees not to discontinue Support for the Software during the current annual term of these Terms and Conditions, subject to the termination provisions herein. MDI reserves the right to alter Support from time to time, using reasonable discretion but in no event will such alterations result in (i) diminished support from the level of Support set forth herein; (ii) materially diminished obligations for MDI; (iii) materially diminished Customer’s rights; or (iv) higher Support Fees during the then-current term. MDI will provide Customer with thirty (30) days’ prior written notice (delivered electronically or otherwise) of any permitted material changes to the Support contemplated herein.
10. ADEQUATE HOSTING ENVIRONMENT
Customer understands and acknowledges that the ASAP Software Product requires at least the minimum hardware and software configuration as outlined in the Documentation to function and operate with desirable performance, and that is is the Customer responsiblity to procure and configure the minimum hosting environment, and that the specified minumum hosting environment should allow the Purchased Software to function but may not provide a desirable level of operating performance. Customer is encouraged to provide and utilize the "recommended" hosting environment specified in the Documentation.
11. CONFIGURATION SERVICES
Subject to Customer’s payment of applicable fees, MDI will provide the deployment, usage assistance, configuration, and/or training services (if any) set forth in the Order (the “Support Services”) in accordance with MDI’s standard support services terms and conditions provided within the Order, which terms and conditions are hereby incorporated by reference and made a part of this Agreement for the specified Term of the Agreement.
12. SOFTWARE VERIFICATION AND AUDIT
At MDI’s request, Customer will furnish MDI with a certification signed by Customer’s authorized representative verifying that the Software is being used in accordance with this Agreement and the applicable Order. Also, if Customer has purchased an offering that requires usage reporting as identified in the Order, Customer agrees to provide such reporting pursuant to the requirements set forth by MDI. Upon at least ten (10) days’ prior written notice to Customer, MDI may audit Customer’s (and its Service Providers’) use of the Software to ensure that Customer (and such Service Providers) are in compliance with this Agreement and the applicable Order. Any such audit will be conducted during regular business hours at Customer’s (and/or its Service Providers) facilities, will not unreasonably interfere with Customer’s (or its Service Providers’) business and will comply with Customer’s (or its Service Providers’) reasonable security procedures. Customer will (and will ensure that its Service Providers) provide MDI with reasonable access to all relevant records and facilities reasonably necessary to conduct the audit. If an audit reveals that Customer (and/or any Service Provider) has exceeded the scope of Customer’s license grant during the period audited, then MDI will invoice Customer, and Customer will promptly pay MDI any underpaid Fees based on MDI’s price list in effect at the time the audit is completed. If the excess usage exceeds ten percent (10%) of the Licensed Term or Functional Capacity, then Customer will also pay MDI’s reasonable costs of conducting the audit. Customer will ensure that its Service Providers provide MDI with the access described in this Section 12. This Section 12 will survive expiration or termination of this Agreement for a period of three (3) years.
MDI warrants that for a period of thirty (30) days from the Delivery of Purchased Software, the Purchased Software will substantially perform the material functions described in MDI’s user Documentation for such Purchased Software, when used in accordance with the user Documentation. The sole liability of MDI (and any Affiliates and suppliers/licensors), and Customer’s sole remedy, for any failure of the Purchased Software to conform to the foregoing warranty, is for MDI to do one of the following (at MDI’s sole option and discretion): (a) modify, or provide an enhancement for, the Purchased Software so that it conforms to the foregoing warranty, (b) replace Customer’s copy of the Purchased Software with a copy that conforms to the foregoing warranty, or (c) terminate the license with respect to the non-conforming Purchased Software and refund the License Fees paid by Customer for such non-conforming Purchased Software. All warranty claims must be made by written notice from Customer to MDI on or before the expiration of the warranty period, as detailed in Section 13.1 below.
13.1 WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 13 ABOVE, THE ASAP MATERIALS, OPEN SOURCE SOFTWARE, THIRD PARTY CONTENT, SUPPORT SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED. TO THE FULL EXTENT PERMITTED BY LAW, MACHINE DATA INSIGHTS, INC. AND ITS SUPPLIERS AND LICENSORS DISCLAIM ALL WARRANTIES OTHER THAN AS EXPRESSLY SET FORTH IN SECTION 13, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR TRADE USAGE. WITHOUT LIMITATION OF THE GENERALITY OF THE FOREGOING, MACHINE DATA INSIGHTS, INC. DOES NOT WARRANT THAT USE OF THE SOFTWARE OR ASAP MATERIALS WILL BE UNINTERRUPTED, ERROR FREE OR SECURE, OR THAT ALL DEFECTS WILL BE CORRECTED.
14. LIMITATION OF LIABILITY
TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR LIMITATION OF LIABILITY: (A) Machine Data Insights, Inc. AND ITS AFFILIATES, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS (INCLUDING AUTHORIZED PARTNERS AS DEFINED IN SECTION 23 BELOW) AND LICENSORS WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING ANY DAMAGES ARISING FROM LOSS OF USE, LOSS OF DATA, LOST PROFITS, LOST REVENUE, BUSINESS INTERRUPTION, OR COSTS OF PROCURING SUBSTITUTE SOFTWARE OR SERVICES) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF; AND (B) MACHINE DATA INSIGHTS, INC. ENTITIES’ TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF WILL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO MACHINE DATA INSIGHTS, INC. FOR THE PURCHASED SOFTWARE IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY, IN EACH OF THE FOREGOING CASES (A) AND (B), REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM CONTRACT, INDEMNIFICATION, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND REGARDLESS OF WHETHER MACHINE DATA INSIGHTS, INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN ADDITION, CUSTOMER, AND NOT MACHINE DATA INSIGHTS, INC., IS SOLELY RESPONSIBLE FOR THE ACCURACY, QUALITY AND SECURITY OF CUSTOMER’S DATA AND FOR MAINTAINING A BACKUP OF ALL SUCH DATA, AND FOR ENSURING THE SECURITY AND INTEGRITY OF CUSTOMER’S (AND ITS SERVICE PROVIDER’S) DATA, COMPUTERS, NETWORKS AND SYSTEMS (INCLUDING WITH RESPECT TO PROTECTING AGAINST VIRUSES AND MALWARE).
MDI will defend Customer against any claim, demand, suit or proceeding brought against Customer by a third party alleging that Purchased Software infringes or misappropriates such third party’s Intellectual Property Rights (“Claim”), and MDI will pay all damages finally awarded against Customer by a court of competent jurisdiction as a result of such Claim, subject to the other terms and conditions of this Agreement. Notwithstanding the foregoing, MDI has no obligation to indemnify Customer with respect to: (a) use of the Purchased Software in a manner that is not permitted under the Agreement or that is inconsistent with MDI’s applicable user Documentation; (b) modifications to the MDI Materials made by anyone other than MDI; (c) the combination of Software with hardware or software not made by MDI, or with third-party services, processes or materials where the infringement or misappropriation would not occur but for such combination; (d) Customer’s continued use of the Purchased Software or other allegedly infringing activity after receiving notice of the alleged infringement; or (e) any version of the Purchased Software that is no longer supported by MDI ((a) through (e), collectively, constitute “Excluded Matters”). If an applicable Claim is made or appears likely to be made, MDI may, at its option and expense, modify the affected Purchased Software so that it is non-infringing, or replace it with substantially functionally equivalent software. If MDI determines that neither is reasonably feasible, MDI may terminate Customer’s applicable license and refund Customer a pro rata refund of the Fees previously paid by Customer, which will be calculated using the remainder of the license term (beginning with the date of MDI’s receipt of notice of the applicable Claim), or if the Purchased Software is licensed under a perpetual license, a refund of Fees previously paid by Customer, less straight-line depreciation on a three-year basis from the Delivery of the applicable Software. The obligations set forth in this Section constitute Customer’s sole and exclusive remedy, and MDI’s entire liability, with respect to any Claims that the Purchased Software infringes any third party’s Intellectual Property Rights. Customer will defend MDI against any claim brought against MDI by a third party arising out of or relating to any Excluded Matter or any Customer Developed Software, and Customer will pay all damages finally awarded against MDI by a court of competent jurisdiction as a result of such claim. Each party’s indemnity obligations set forth in this Section 15 are conditioned upon the party seeking indemnification (x) providing prompt written notice to the other party of the applicable claim; (y) giving the indemnifying party sole control of the defense and/or settlement of the applicable claim, except that: (i) the indemnified party may participate in the defense with counsel of its choice at its own expense, and (ii) the indemnifying party will not agree to any settlement that imposes a material obligation on the indemnified party without the indemnified party’s prior written consent (not to be unreasonably withheld or delayed), and (z) providing reasonable cooperation and assistance in the defense and negotiations.
16. CONFIDENTIAL INFORMATION
16.1 Confidential Information. “Confidential Information” means any technical or business information, ideas, materials, know-how or other subject matter that is disclosed by one party to the other party that: (a) if disclosed in writing, is marked “confidential” or “proprietary” at the time of such disclosure; (b) if disclosed orally, is identified as “confidential” or “proprietary” at the time of such disclosure, and is summarized in a writing sent by the disclosing party to the receiving party within thirty (30) days after any such disclosure; or (c) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. Confidential Information of MDI will include the MDI Materials (including any license keys).
16.2 Use and Disclosure Restrictions. The party receiving Confidential Information (“Recipient”) agrees: (a) to maintain the Confidential Information of the party disclosing such information (the “Discloser”) in strict confidence; (b) not to disclose such Confidential Information to any third parties; and (c) not to use any such Confidential Information for any purpose other than to exercise its rights or perform its obligations under this Agreement. Recipient will treat Confidential Information of the Discloser with the same degree of care as it accords to its own Confidential Information, but in no event with less than reasonable care. Recipient may disclose the Confidential Information of Discloser to its directors, officers, employees, and subcontractors (collectively, “Representatives”), who have a bona fide need to know such Confidential Information, provided that each such Representative is bound by a legal obligation as protective of the other party’s Confidential Information as those set forth herein. Recipient’s obligations under this Section 16 will continue in effect for a period of three (3) years from the date of last disclosure of Confidential Information by Discloser, except that Customer’s obligations under this Section 16 will continue in effect in perpetuity with respect to MDI Materials.
16.3 Exclusions. The obligations of Recipient under Section 16.1 will not apply to any Confidential Information that: (a) is now or thereafter becomes generally known or available to the public, through no act or omission on the part of Recipient (or any of its Representatives, Affiliates, or agents) or any third party subject to any use or disclosure restrictions with respect to such Confidential Information; (b) was known by or lawfully in the possession of Recipient, prior to receiving such information from Discloser, without restriction as to use or disclosure; (c) is rightfully acquired by Recipient from a third party who has the right to disclose it and who provides it without restriction as to use or disclosure; or (d) is independently developed by Recipient without access, use or reference to any Confidential Information of Discloser.
16.4 Required Disclosures. The provisions of Section 16.1 will not restrict Recipient from disclosing Discloser’s Confidential Information to the extent required by any law enforcement agencies or regulators or compelled by a court or administrative agency of competent jurisdiction, provided that, to the extent permissible under law, Recipient uses reasonable efforts to give Discloser advance notice of such required disclosure as appropriate in order to enable Discloser to prevent or limit disclosure.
16.5 Return or Destruction of Confidential Information. Upon termination of the Agreement or maintenance and support, Recipient will promptly return to Discloser or, at Discloser’s option, destroy all tangible items and embodiments containing or consisting of Discloser’s Confidential Information and all copies thereof and provide written certification of such destruction or return by an authorized person.
16.6 Injunctive Relief. Recipient agrees that, due to the unique nature of the Confidential Information, the unauthorized disclosure or use of the Confidential Information will cause irreparable harm and significant injury to Discloser, the extent of which will be difficult to ascertain and for which there will be no adequate remedy at law. Accordingly, Recipient agrees that Discloser, in addition to any other available remedies, will have the right to an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Section 16, without the necessity of posting any bond or other security. Recipient will notify Discloser in writing immediately upon Recipient’s becoming aware of any such breach or threatened breach.
This Agreement will commence upon MDI’s first Delivery of the Software specified in the Order (or, MDI’s other initial delivery of the Software to Customer) and will remain in effect until the expiration of the applicable Software license term, unless earlier terminated pursuant to Section 3 (the “Term”). For the avoidance of doubt, termination of a license term shall not affect the term of any other licenses applicable to other MDI products and services that Customer has purchased. Further, termination of a Content Subscription shall not affect the term of the base license applicable to the Software that Customer has purchased.
17.1 Purchased Software. Unless otherwise indicated in the Order, the Term for Purchased Software, Free Software, ASAP Customizations and MDI Developer Tools, if applicable, will continue indefinitely, unless and until terminated pursuant to Section 3. If the Order indicates a Term of a specific duration for any of the foregoing, the licenses granted to Customer for such Purchased Software or Free Software will terminate automatically upon expiration of such Term. Upon expiration of any Term, the applicable Software will stop working automatically.
17.2 Evaluation Software. If Customer is granted a license for Evaluation Software, then the Term for such Evaluation Software will be specified in the Order or with the license key. If no such term is specified, the Term for Evaluation Software is thirty (30) days from the date the license key is delivered. Any license keys provided for Evaluation Software will automatically expire and cause the Evaluation Software to become non-operational at the end of the Term. If Customer wishes to use the Evaluation Software after the Term expires, then Customer must obtain the applicable paid license.
Either party may terminate this Agreement by written notice to the other party if the other party materially breaches this Agreement and does not cure the breach within thirty (30) days of receiving written notice of the breach pursuant to Section 23.2 below. In addition, MDI may immediately terminate this Agreement (in whole or in part, including with respect to any Term) by written notice to Customer (a) if Customer materially breaches Section 3, and (b) as set forth in Section 6. MDI may also terminate Customer’s license to any Evaluation Software at any time with or without cause by notice to Customer. If Customer is the Government, then termination terms and conditions will be governed by 48 C.F.R. § 52.212-4. Upon any expiration or termination of this Agreement, the rights and licenses granted to Customer hereunder will automatically terminate, and Customer agrees to cease immediately using the MDI Materials and to return or destroy all copies of the MDI Materials and other MDI Confidential Information in Customer’s possession or control, and certify in writing the completion of such return or destruction in accordance with Section14.5. Upon termination of this Agreement, MDI will have no obligation to refund any Fees or other amounts received from Customer during the Term, and notwithstanding any early termination above, Customer shall still be required to pay all Fees payable under an Order (i.e., no such early termination shall relieve Customer of its obligations to pay all Fees payable under an Order) unless otherwise provided in this Agreement. Termination of Maintenance and Support Terms and Conditions due to MDI’s breach is provided in Section 27 (Common Use Definitions), Section 6 (Ownership), Section 12 (Software Verification and Audit), Section 13.1 (Warranty Disclaimer), Section 14 (Limitation of Liability), Section 15 (Indemnity), Section 16 (Confidential Information), Section 18 (Termination) and Sections 19 (Export) through 25 (General) will survive any expiration or termination of this Agreement.
Customer will comply fully with all relevant export laws and regulations of the United States and any other country (“Export Laws”) where Customer uses any of the MDI Materials. Customer certifies that Customer is not on any of the relevant U.S. government lists of prohibited persons, including the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s List of Denied Persons or Entity List. Customer further certifies that Customer will not export, re-export, ship, transfer or otherwise use the MDI Materials in any country subject to an embargo or other sanction by the United States, and that Customer will not use the MDI Materials for any purpose prohibited by the Export Laws, including, but not limited to, nuclear, chemical, missile or biological weapons related end uses.
20. GOVERNMENT END USER RIGHTS
Customer acknowledges that all MDI Materials were developed entirely at private expense and that no part of the MDI Materials was first produced in the performance of a government contract. Customer agrees that all MDI Materials and any derivatives thereof are “Commercial Items” as defined in 48 C.F.R. § 2.101, and if Customer is the Government, then such use, duplication, reproduction, release, modification, disclosure or transfer of this commercial product and data, is restricted in accordance with 48 C.F.R. § 12.211, 48 C.F.R. § 12.212, 48 C.F.R. § 227.7102-2, and 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.211, 48 C.F.R. § 12.212, 48 C.F.R. § 227.7102-1 through 48 C.F.R. § 227.7102-3, and 48 C.F.R. §§ 227.7202-1 through 227.7202-4, as applicable, the MDI Materials are licensed to Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other users pursuant to this Agreement and any related agreement(s), as applicable. Accordingly, Customer will have no rights in the MDI Materials except as expressly agreed to in writing by Customer and MDI.
Customer agrees that MDI may publish a brief description of Customer’s deployment of the Software and identify Customer as a MDI customer on any of MDI’s websites, client lists, press releases, and/or other marketing materials.
22. THIRD PARTY CONTENT DISCLAIMER
Certain ASAP Procedures or other ASAP utility software and other materials or services made available for download or access on the MDI website or any other software repositories may have been developed and/or provided by third parties (“Third-Party Content”). MDI may make such Third-Party Content available for download on the MDI website or other software repository as a convenience to its customers, but MDI neither controls nor endorses, nor is MDI responsible for, any Third-Party Content, including the accuracy, integrity, quality, legality, usefulness or safety of Third-Party Content. Certain Third-Party Content may, among other things, be inaccurate, nonfunctional, infringing or dangerous. Nothing in this Agreement or on the MDI website will be deemed to be a representation or warranty by MDI with respect to any Third-Party Content, even if a particular Procedure, utility, or other item of Third-Party Content is identified as “certified” or "validated" for use with Software. MDI has no obligation to monitor Third-Party Content, and MDI may block or disable access to any Third-Party Content at any time. In addition, the availability of any Third-Party Content through the MDI website or other software repository does not imply MDI’s endorsement of, or affiliation with, any provider of such Third-Party Content, nor does such availability create any legal relationship between Customer and any such provider. Customer’s use of Third-Party Content is at Customer’s own risk and may be subject to any additional terms, conditions and policies applicable to such Third-Party Content (such as license terms, terms of service or privacy policies of the providers of such Third-Party Content).
23. AUTHORIZED PARTNERS
If Customer acquired the Software through an authorized reseller, partner or OEM of MDI (“Authorized Partner”) then, notwithstanding anything to the contrary in this Agreement: (a) Customer’s use of the Software is subject to any additional terms in the agreement provided by the Authorized Partner; (b) Customer agrees to pay the Authorized Partner the Fees and other applicable fees, and Customer will have no direct Fee payment obligations to MDI for such Software; (c) Customer’s agreement with the Authorized Partner is between Customer and the Authorized Partner and is not binding on MDI; and (d) MDI may terminate this Agreement (including Customer’s right to use the Software) if MDI does not receive payment for Customer’s use of the Software from the Authorized Partner or if Customer breaches any term of this Agreement. If Customer’s warranty and support terms stated in its agreement with the Authorized Partner are different from those set forth in this Agreement, then such different terms are solely between Customer and the Authorized Partner and MDI will have no obligations to Customer under this Agreement with respect to such different terms. Except as set forth in the preceding sentence, if there is any conflict or inconsistency between this Agreement and Customer’s agreement with Authorized Partner, then this Agreement will control (and will resolve such inconsistency) as between MDI and Customer.
24. CHOICE OF LAW AND DISPUTES
Unless Customer is the Government, this Agreement will be governed by and construed in accordance with the laws of the State of Florida, as if performed wholly within the state and without giving effect to the conflicts of law principles of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. Any legal action or proceeding arising under this Agreement will be brought exclusively in federal or state courts located in Florida, and the parties hereby consent to personal jurisdiction and venue therein (except that MDI may seek injunctive relief to prevent improper or unauthorized use or disclosure of any MDI Materials in any court of competent jurisdiction). If Customer is the Government, this Agreement will be governed by and interpreted in accordance with the Contract Disputes Act of 1978, as amended (41 U.S.C. §§ 7101-7109). Failure of the parties to reach agreement on any request for equitable adjustment, claim, appeal, or action arising under or relating to this Agreement will be a dispute to be resolved in accordance with the clause at 48 C.F.R § 52.233-1, which is incorporated in this Agreement by reference.
25.1 Purchase Order. Customer’s issuance of a purchase order constitutes acceptance of this Agreement notwithstanding anything to the contrary in such purchase order. If any purchase order contains any terms or conditions that are different from or additional to the terms and conditions set forth in this Agreement, then MDI expressly rejects such different or additional terms and conditions, and such different or additional terms and conditions will not become a part of the agreement between the parties notwithstanding any subsequent acknowledgement, invoice or license key that MDI may issue.
25.2 Notices. All notices required or permitted under this Agreement will be in writing and delivered in person, by confirmed facsimile transmission including scanned "PDF" documents sent and acknowledged by email, or by registered or certified mail, postage prepaid with return receipt requested, and in each instance will be deemed given upon receipt. All communications will be sent to the physical addresses and/or email addresses set forth in the applicable Order or to such other address as may be specified by either party to the other party in accordance with this Section.
25.3 Assignment. Customer may not assign, delegate or transfer this Agreement, in whole or in part, by agreement, operation of law or otherwise without the prior written consent of MDI. MDI may assign this Agreement in whole or in part to an Affiliate or in connection with an internal reorganization or a merger, acquisition, or sale of all or substantially all of MDI’s assets to which this Agreement relates. MDI may also assign its rights to receive payment due as a result of performance of this Agreement to a bank, trust company, or other financing institution, including any federal lending agency in accordance with the Assignment of Claims Act (31 U.S.C. § 3727) and may assign this Agreement in accordance with the provisions at 48 C.F.R § 42.12, as applicable. Any attempt to assign this Agreement other than as permitted herein will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties’ permitted successors and assigns.
25.4 Rights and Remedies. Except as otherwise expressly set forth in this Agreement, the rights and remedies of either party as set forth in this Agreement are not exclusive and are in addition to any other rights and remedies now or hereafter provided by law or at equity.
25.5 Waiver; Severability. The waiver by either party of a breach of or a default under this Agreement will not be effective unless in writing. The failure by either party to enforce any provisions of this Agreement will not constitute a waiver of any other right hereunder or of any subsequent enforcement of that or any other provisions. If a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
25.6 Interpretation. For purposes of interpreting this Agreement, (a) unless the context otherwise requires, the singular includes the plural, and the plural includes the singular; (b) unless otherwise specifically stated, the words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Section or paragraph; (c) the words “include” and “including” will not be construed as terms of limitation, and will therefore mean “including but not limited to” and “including without limitation”; (d) unless otherwise specifically stated, the words “writing” or “written” mean preserved or presented in retrievable or reproducible form, whether electronic (including email but excluding voice mail) or hard copy; (e) the captions and Section and paragraph headings used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of this Agreement; and (f) the references herein to the parties will refer to their permitted successors and assigns.
25.7 Integration; Entire Agreement. This Agreement along with any additional terms incorporated herein by reference, including the Order and the Exhibits hereto, constitute the complete and exclusive understanding and agreement between the parties and supersedes any and all prior or contemporaneous agreements, communications and understandings, written or oral, relating to their subject matter. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties. Any terms and conditions contained or referenced by either party in a quote, purchase order, acceptance, invoice or any similar document purporting to modify the terms and conditions contained in this Agreement will be disregarded and have no effect unless otherwise expressly agreed to by the parties in accordance with the preceding sentence.
26. AGREEMENT TERM AND TERMINATION
26.1 Term. These Terms and Conditions will commence on the Delivery date and, unless terminated earlier in accordance with the terms of the Agreement, for a period of one (1) year (or for term purchased if different than one year) thereafter (the “Initial Term”). These Terms and Conditions will, for maintenance and support services purchased for perpetual licenses, automatically renew for additional one (1)-year terms (or for term purchased if different than one year) (each, a “Renewal Term,” and the Initial Term, collectively with any and all Renewal Terms, will be referred to as the “Support Term”), unless either party provides the other (or if purchased through an Authorized Partner, Customer provides the Authorized Partner) with written notice of its intent not to renew these Terms and Conditions at least thirty (30) days prior to the end of the then-current Initial Term or Renewal Term. Customer must purchase and/or renew Support for all of the licenses for a particular Software product. If the Support Term lapses, Customer may seek to re-activate Support by submitting a purchase order that includes fees for the lapsed period plus a reinstatement fee.
26.2 Termination. Either party may terminate these Terms and Conditions by written notice to the other party if the other party materially breaches this Agreement or these Terms and Conditions and does not cure the breach within thirty (30) days of receiving notice of the breach. If Customer terminates the Agreement for MDI’s uncured material breach of these Terms and Conditions, then MDI will refund any unused prepaid fees to Customer as Customer’s sole and exclusive remedy. When Customer accepts a term license in an Order that also terminates the Customer’s perpetual licenses of a Software (“Prior Software”), all rights granted with respect to the Prior Software are terminated upon the effective date of the Order, unless otherwise specified on the Order. There will be no refund of any Fees previously paid with respect to the Prior Software. Customer will certify in writing within thirty (30) business days of the date of a request from MDI, the destruction of all of the Prior Software including all Software copies and related license keys thereof.
26.3 Force Majeure. MDI will not be responsible for any failure or delay in its performance under these Terms and Conditions due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, acts of God or governmental action.
27. COMMON USE DEFINITIONS
“Affiliate,” with respect to a party, means a corporation, partnership or other entity controlling, controlled by or under common control with such party, but only so long as such control continues to exist. For purposes of this definition, “control” means ownership, directly or indirectly, of greater than fifty percent (50%) of the voting rights in such entity (or, in the case of a noncorporate entity, equivalent rights).
“Authorized Partner” has the meaning set forth in Section 23.
“Claim” has the meaning set forth in Section 15.
“Confidential Information” has the meaning set forth in Section 16.1.
“Content Subscription” means certain entitlement for Customer to receive a collection of updated contents applicable to the Purchased Software (such as Procedures, models, rules and configurations, as further described in the relevant end user Documentation for the Purchased Software) on a periodic basis for the duration of the subscription period. This can be purchased as an add-on service to the term license or perpetual license to the applicable Purchased Software as identified in the Order.
“Content Subscription Fees” has the meaning set forth in Section 8.
“Delivery” means the date of MDI’s initial delivery of the license key for the applicable Software or otherwise making the applicable Software available for download by Customer.
“Disabled Materials” means certain materials (including programs, modules or components, functionality, features, Documentation, content or other materials) that may be contained in or provided with the Software as part of the delivery mechanism used by MDI, but that are disabled or hidden in Customer’s setting, because Customer either: (a) does not have the relevant license or license key, or (b) has not paid the applicable Fees, for those materials.
“Evaluation Software” means Software that is specified in an Order as provided under an evaluation license or a free trial license.
“Excluded Matters” has the meaning set forth in Section 15.
"Enhancement" means any modification made to the Purchased Software to enhance or improve the functionality of the Software.
“Extension” means any separately downloadable software suite, configuration file, add-on, example module, command, function or application that extends the features or functionality of the applicable Software.
“Feedback” means all suggestions for improvement or enhancement, recommendations, comments, opinions, code, input, ideas, reports, information, know-how or other feedback provided by Customer (whether in oral, electronic or written form) to MDI in connection with MDI’s Software. Feedback does not include any data, results or output created or generated by Customer using the Software, unless specifically submitted or communicated by Customer to MDI as part of the Feedback.
“Free Software” means Software that is specified in an Order as provided to Customer without charge (other than Evaluation Software).
“Functional Capacity” means the maximum usage of the Software (e.g., aggregate number of nodes monitored and managed, volume of data processed, or any other licensed or technical limitation which MDI choses at its sole discretion to include and utilize as a controlling measurment or metric of License Fees) that is specified and permitted under the type of license included in the applicable Order.
“Government” means an agency, department, or instrumentality of the United States government.
“Intellectual Property Rights” means all patent, copyright, trademark, and trade secret rights and other intellectual property and proprietary rights, whether registered or unregistered.
“Internal Business Purpose” means Customer’s use for its own internal business operations on Customer’s systems, networks and devices with Customer’s data. Such use does not include use by Customer on a service bureau basis or otherwise to provide services to, or process data for, any third party.
“License Fees” has the meaning set forth in Section 8.
“MDI Developer Tool” means the standard application programming interface configurations, software development kits, libraries, command line interface tools, other tooling (including scaffolding and data generation tools), integrated development environment plug-ins or extensions, code examples, tutorials, reference guides and other related materials identified and provided by MDI to facilitate or enable the creation of ASAP Customizations, Procedures, Customer Developed Software, or otherwise support interoperability between the Software and Customer’s system or environment.
“Open Source Software” means software or similar subject matter that is distributed under an open source license such as (by way of example only) the GNU General Public License, GNU Lesser General Public License, Apache License, Mozilla Public License, BSD License, MIT License, Common Public License, any derivative of any of the foregoing licenses, or any other license approved as an open source license by the Open Source Initiative.
“Order” means MDI’s quote, statement of work, or ordering document accepted by Customer via Customer’s purchase order or other ordering document submitted to MDI (directly or indirectly through an Authorized Partner) to order MDI Materials or services, which references the products, services, pricing and other applicable terms set forth in an applicable MDI quote or ordering document.
“Professional Services” has the meaning set forth in Section 11.
“Purchased Software” means Software that is licensed to Customer and for which Customer has paid a License Fee to MDI, whether directly or through an Authorized Partner.
“Service Providers” has the meaning set forth in Section 5.
“Software” means the Software products listed in an Order and any Enhancements thereto made available to Customer by MDI.
“Support Services” has the meaning set forth in Section 9.
“Term” has the meaning set forth in Section 17.
“Test and Development Software” means Software that is specified in an Order as provided under a test and development license.
“Third-Party Content” has the meaning set forth in Section 22.