Effective November 9, 2018
INTERNAL USE LICENSE
IF AN INDIVIDUAL IS DOWNLOADING, INSTALLING, USING, OR CONFIGURING THE ECHOTRAIL SERVICE ON ITS OWN BEHALF AS LICENSOR OR AS INDIVIDUAL ON BEHALF OF LICENSE, SUCH INDIVIDUAL REPRESENTS AND WARRANTS THAT HE OR SHE IS AT LEAST 18 YEARS OLD AND HAS THE FULL RIGHT, POWER, AND AUTHORITY TO ENTER INTO THE AGREEMENT ON BEHALF OF LICENSOR, THAT THE AGREEMENT HAS BEEN AUTHORIZED BY LICENSOR, AND THAT THE AGREEMENT WILL CONSTITUTE THE LEGAL, VALID, AND BINDING OBLIGATION OF LICENSOR, ENFORCEABLE AGAINST LICENSOR IN ACCORDANCE WITH ITS TERMS. THE AGREEMENT IS EFFECTIVE ON THE EFFECTIVE DATE. BY EXECUTING OR SIGNING AN ORDER OR OTHERWISE MANIFESTING ASSENT TO THE TERMS AND CONDITIONS OF THE AGREEMENT THROUGH THE ECHOTRAIL SERVICE, LICENSOR ACKNOWLEDGES THAT IT HAS READ THE AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY IT. IF PARTNER DOES NOT AGREE, PARTNER IS NOT AUTHORIZED TO USE THE BRIGHTCLOUD SERVICE FOR ANY PURPOSE.
The Parties hereto by their mutual execution of this Agreement or a related Order hereby agree as follows for mutual consideration, the receipt and sufficiency of which is hereby acknowledged:
Defined Terms. All defined terms in the Agreement have the meanings given to them in this Section 1 or in the section in which such terms are first defined. Definitions denoting the singular have a comparable meaning when used in the plural, and vice versa.
1.1. “Affiliate” means an entity that, directly or indirectly, through one or more intermediaries, controls or is controlled by or is under common control with a Party.
1.2. “API” means EchoTrail’s application programming interface that may be called or invoked to receive Data.
1.3. “Confidential Information” means non-public information that is exchanged between (a) Licensor or its Affiliates and (b) EchoTrail or its Affiliates, provided that such information: (x) is identified as confidential at the time of disclosure by the disclosing party (“Discloser”); or (y) is disclosed under circumstances that would indicate to a reasonable person that the information should be treated as confidential by the party receiving such information (“Recipient”), except that in the case of EchoTrail, all non-public aspects of the EchoTrail Service are EchoTrail’s Confidential Information, regardless of how disclosed. Confidential Information does not include information that Recipient can demonstrate: (i) was rightfully known to Recipient without restriction on use or disclosure prior to such information being disclosed or made available to Recipient in connection with the Agreement; (ii) was or becomes generally known by the public other than by Recipient’s breach of the Agreement; or (iii) was or is received by Recipient on a non-confidential basis from a third party that, to Recipient’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality.
1.4. “Data” means the computer and network vulnerability and security information related to a file or hash and related information that EchoTrail will provide via the API to Licensor pursuant to an Order and subject to this Agreement.
1.5. “Device” means one or more of Licensor’s electronic devices, appliances, or applications, whether physical or virtual, that can receive one or more Data Types from the EchoTrail Services.
1.6. “EchoTrail” means EchoTrail, Ltd., a Colorado limited liability company.
1.7. “EchoTrail Indemnitees” means EchoTrail, its Affiliates, and its and their officers, directors, employees, shareholders, and permitted successors and assigns.
1.8. “EchoTrail Properties” means the EchoTrail Service and resulting Data.
1.9. “EchoTrail Service” means EchoTrail’s security intelligence service that: (a) is offered on a subscription basis; (b) is accessed via API calls or via the UI; and (c) provides the Data.
1.10. “Fees” means those fees and charges set forth in an Order.
1.11. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
1.12. “Order” means any written order or quote, in electronic or paper form, executed by Licensor and EchoTrail, for use of the Data that references this Agreement.
1.13. “Licensor” means the entity agreeing to be bound by this Agreement as the Licensor whether on its own behalf or by an individual or entity on such Licensor’s behalf as evidence on an Order.
1.14. “Party” means EchoTrail or Licensor, as appropriate, and “Parties” means EchoTrail and Licensor.
1.15. “Representative” means, as to a Party or its Affiliates, any of that Party’s or its Affiliates’ directors, officers, employees, contractors, consultants, and advisors.
1.16. “Subscription Term” means the amount of time set forth on an Order that Licensor is authorized to exercise its rights under the Agreement. If the Order doesn’t specify when the Subscription Term begins, it begins on the Effective Date.
1.17. “UI” means the user interface that Licensor may utilize to access the Data directly from EchoTrail’s website.
Orders. Licensor may subscribe to the EchoTrail Service via an Order accepted by EchoTrail. HOWEVER, ACCEPTANCE OF AN ORDER IS EXPRESSLY LIMITED TO AND CONDITIONED ON THE TERMS CONTAINED IN THE ORDER, INCLUDING ANY REFERENCE TO THE AGREEMENT THEREIN. ECHOTRAIL OBJECTS TO ANY TERMS IN LICENSOR’S ACCEPTANCE OR CONFIRMATION OF ANY ORDER (INCLUDING ANY TERMS CONTAINED OR REFERENCED IN ANY SUBSEQUENT PURCHASE ORDER OR SIMILAR DOCUMENT PROVIDED BY LICENSOR) THAT ARE ADDITIONAL TO OR DIFFERENT FROM THE TERMS OF THE AGREEMENT. ANY SUCH ADDITIONAL OR DIFFERENT TERMS, WHETHER RECEIVED PRIOR TO OR AFTER THE DATE OF AN ORDER, WILL BE DISREGARDED BY THE PARTIES UNLESS SUCH TERMS ARE SPECIFICALLY AGREED TO IN A WRITING SIGNED BY ECHOTRAIL. IN THE EVENT OF A CONFLICT BETWEEN AN ORDER AND THE TERMS OF THIS AGREEMENT, THE TERMS IN THE ORDER WILL CONTROL.
Non-Exclusive Rights. Subject to Licensor’s compliance with Sections 4, 10, and 12, EchoTrail, to the extent applicable to an Order, hereby grants Licensor a non-exclusive, non-sublicensable (except as expressly set forth below), non-transferable right and license during the Subscription Term to: (a) download, install, configure, and use, as applicable, the API and related code for the sole purpose of accessing and using the EchoTrail Service pursuant to this Agreement and any Order; (b) access and use the EchoTrail Service, and the Data produced by the EchoTrail Service, but solely by Licensor’s Representatives for Licensor’s internal business purposes in accordance with this Agreement and any Order; (c) access and use the Data and solely for Licensor’s internal business purposes of conducting threat research; and (d) use and make a reasonable number of copies of any documentation as necessary to use EchoTrail Services. For the avoidance of doubt, EchoTrail does not grant Licensor a right to modify, adapt, translate, publicly display, publish, create derivative works of, or distribute any Data or results from the EchoTrail Service or associated documentation. The rights granted in this Section 3 terminate when this Agreement expires or is terminated by EchoTrail as set forth herein.
License Conditions. Licensor and Licensor’s Representatives may use the EchoTrail Service only during the Subscription Term in accordance with this Agreement and Order(s). As a condition to the rights and licenses granted in Section 3, Licensor agrees that Licensor and Licensor’s Representatives must not, nor permit any third party to: (a) access or use the EchoTrail Service (or any feature thereof), or any Data in a manner not specifically permitted by this Agreement or Licensor’s Order; (b) circumvent any license restrictions or mechanisms intended to limit Licensor’s use of the EchoTrail Service or use any automation software (bots), hacks, or other unauthorized third-party software to reverse engineer or ascertain the algorithms or logic underlying or constituting the EchoTrail Service and resulting Data; (c) modify, correct, adapt, translate, enhance or otherwise prepare derivative works of or improvements to any portion of the EchoTrail Service or Data; (d) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any portion of the EchoTrail Service or any Data to any third party other than Licensor’s Representatives, including in connection with any time-sharing, service bureau, software as a service, cloud, or other technology or service; (e) reverse engineer, disassemble, or decompile any feature or portion of the EchoTrail Service, or attempt to derive the source code of the EchoTrail Service; (f) misuse, damage, disrupt, or impair the EchoTrail Service or interfere with any other party’s use of the EchoTrail Service; (g) perform any performance or benchmarking evaluation of the EchoTrail Service, or publish or disclose any results produced by the foregoing, including any results pertaining to Data; (h) alter or remove any copyright, trademark, or proprietary notices, credits, or legends contained on or in or provided through the EchoTrail Service provided with the Data; (i) use any Data, or any portion of the Delivery Software or EchoTrail Service, in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any person or entity; or (j) use any Data, or any portion of the EchoTrail Service, in violation of any applicable law, regulation, or order.
Control of Infrastructure.
5.1. EchoTrail. As between Licensor and EchoTrail, EchoTrail has and will retain sole control over the operation, provision, maintenance, corrections, repairs, and management of the EchoTrail Services, including the location where any of the EchoTrail Services are performed or hosted, and all related support services.
5.2. Licensor. The EchoTrail Service requires an active Internet connection in order to function and communicate with the API or the UI. Licensor is solely responsible for the functioning of Licensor’s network environment and EchoTrail is not responsible for Licensor’s network connections or for issues, conditions, or problems arising out of or relating to Licensor’s network or Internet connections, including but not limited to, bandwidth issues, latency issues, network outages, or delays. Licensor acknowledges that the API, UI, and other services that are accessed or used through Internet connections may be subject to Licensor’s internet service provider’s downtime from time to time, and Licensor hereby releases EchoTrail and its directors, officers, employees, and representatives from any liabilities, damages, losses, and costs incurred by Licensor arising from or relating to any of the foregoing.
Information Collected by the EchoTrail Service.
6.1. Collection. The EchoTrail Service may collect and send to the API one or more of the following:
(a) potential security risks such as, without limitation, attempted intrusion events, files or hashes searched and that may be fraudulent or malicious (**“Attack Data”**); (b) Licensor Device’s IP address and approximate geographic location (**“Location Information”**); and (c) other details about Licensor’s Devices or servers, which may include, but are not limited to, Licensor’s Device’s operating system, Licensor’s usage of the EchoTrail Service (e.g., features used, session lengths, connection times, updates, upgrades), program files or file extracts (used for malware research and analysis), username of logged-in operating system user, registry keys, language, software report logs, running processes, temporary Internet files, Internet search history, applications using ports, active directory identifiers, and other data pertaining to the contents of Licensor’s custom folders and/or downloaded program files directory (**“System Information,”** and collectively with Attack Data and Location Information, **“Licensor Data”**).
6.2. Use. Licensor hereby grants EchoTrail a perpetual and irrevocable license to copy, modify, and use Licensor Data to:
(a) provide the EchoTrail Service and related services to Licensor and EchoTrail’s other customers;
(b) improve EchoTrail’s products and services; and
(c) develop aggregate, non-customer identifiable statistics, which EchoTrail may use for research, publicity, marketing, promotional and other commercial purposes.
6.3. Transfer. IN CONDUCTING THE FOREGOING ACTIVITIES, ECHOTRAIL MAY TRANSFER LICENSOR DATA TO ITS LOCATIONS IN THE UNITED STATES AND OTHER JURISDICTIONS. BY AGREEING TO THIS AGREEMENT OR CONNECTING TO OR USING THE ECHOTRAIL SERVICE, LICENSOR AGREES TO SUCH TRANSFER AND PROCESSING OF LICENSOR’S DATA, INCLUDING LICENSOR’S LOGIN INFORMATION, AND ACKNOWLEDGE THAT IT IS NECESSARY FOR THE PERFORMANCE OF THIS AGREEMENT. PLEASE NOTE THAT LICENSOR DATA MAY NOT BE SUBJECT TO THE SAME CONTROLS AS LICENSOR’S CURRENT LOCATION. LICENSOR CONSENTS TO THE USES DESCRIBED ABOVE, INCLUDING BUT NOT LIMITED TO HAVING LICENSOR DATA TRANSFERRED TO AND PROCESSED IN THE UNITED STATES AND OTHER JURISDICTIONS.
7.1. Compliance with Laws.
(a) **General**. Licensor shall comply with all applicable federal, state, local and foreign laws, rules, and regulations (including, without limitation, laws related to data protection and privacy) while using the Data and the EchoTrail Services. (b) **Export**. The EchoTrail Service is subject to U.S. export control laws and regulations, and may be subject to foreign export or import laws or regulations. Licensor shall strictly comply with all such laws and regulations and shall not use or transfer the EchoTrail Service (or any feature or component thereof) for any use relating to missile technology or nuclear, chemical, or biological weapons.
7.2. Enforcement. Licensor shall use commercially reasonable efforts to assist EchoTrail in the enforcement of EchoTrail’s rights.
7.3. Licensor Indemnification and Defense. Licensor shall indemnify, hold harmless, and defend each EchoTrail Indemnitee against any and all losses, liabilities, judgments, damages and costs (including reasonable attorneys’ fees) (collectively, “Losses”) arising out of any suit, action, proceeding or claim initiated by a third party (“Claim”) that relates to: (a) the use by Licensor of Data other than as authorized under the Agreement; or (b) any breach of Section 7.1 (Compliance with Laws); provided, that EchoTrail: (i) promptly notifies Licensor of the Claim after becoming aware of such Claim; (ii) gives Licensor sole control of the defense of the Claim and any related settlement that does not involve an admission of fault or liability on the part of EchoTrail; and (iii) cooperates and, at EchoTrail’s reasonable request and expense, assists in the defense of such claim.
Confidential Information. During the Subscription Term of the Agreement and for 3 years following the Subscription Term, Recipient must: (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under the Agreement; (b) disclose Confidential Information only to those Representatives of Recipient who have a need to know such Confidential Information for purposes of the Agreement and who are bound by confidentiality obligations no less stringent than those of this Section 8; (c) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care Recipient uses to protect its own confidential information and in no event less than a reasonable degree of care; and (d) promptly notify Discloser in writing of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure. Recipient may disclose Confidential Information as required to comply with the binding orders of courts or governmental entities that have jurisdiction over it, on the condition that Recipient must: (x) give Discloser reasonable written notice prior to any such disclosure in order to allow Discloser to seek a protective order or other appropriate remedy; (y) disclose only such Confidential Information as is required by the court or governmental entity; and (z) use commercially reasonable efforts to obtain confidential treatment for any Confidential Information disclosed. If one or more Representatives of Recipient disclose or use Confidential Information other than as authorized in the Agreement, Recipient will be liable to Discloser for that disclosure or use to the same extent that Recipient would have been had Recipient disclosed or used that Confidential Information.
9.1. The EchoTrail Service. The EchoTrail Service and Data are licensed, not sold, and Licensor will not have or acquire any ownership interest in the foregoing. As between Licensor and EchoTrail, EchoTrail is and will remain the sole and exclusive owner of all right, title, and interest in and to the EchoTrail Service and Data, including all Intellectual Property Rights therein, subject only to the limited rights expressly granted to Licensor under the Agreement. EchoTrail reserves all rights to the EchoTrail Service and Data not expressly granted to Licensor in the Agreement. Licensor will promptly take such actions as EchoTrail may reasonably request from time to time (including execution of affidavits and other documents) to effect, perfect, or confirm EchoTrail’s ownership rights as set forth in the Agreement.
9.2. The EchoTrail Marks and Data. Licensor acknowledges that: (a) as between the Parties, the EchoTrail Marks are the sole and exclusive property of EchoTrail; (b) EchoTrail retains all right, title and interest in and to the EchoTrail Marks, including all improvements, modifications, adaptations, copies, or derivative works of the EchoTrail Marks; and (c) Data are protected by U.S. copyright laws and also comprise and contain the trade secrets of EchoTrail.
Fees and Payment.
10.1. Fees. Licensor is responsible for paying EchoTrail the Fees without setoff or deduction. Unless otherwise stated in the Order, EchoTrail will invoice Licensor in advance for the Subscription Term. All Fees are guaranteed and non- refundable.
10.2. Invoices. Unless otherwise set forth in an Order, Licensor must make all payments to EchoTrail in USD within 30 calendar days of the date of EchoTrail’s applicable invoice.
10.3. Taxes. The Fees exclude any taxes. Licensor will be responsible for payment of all taxes applicable to the EchoTrail Service, including without limitation all federal, state, and local sales, use, excise, and value-added taxes, with the exception of those taxes based solely on EchoTrail’s net income. Licensor will make all payments of Fees to EchoTrail free and clear of, and without reduction for, any withholding taxes. Licensor must reimburse EchoTrail for any interest or penalties assessed on EchoTrail as a result of Licensor’s failure to pay taxes in accordance with this Section 15.4.
10.4. Interest. All late payments will bear interest at the rate of 1.5% per month (or the maximum amount allowed by law, if less), calculated daily and compounded monthly. Licensor must reimburse EchoTrail for all of its fees and costs incurred in collecting any late payments, including, without limitation, attorneys’ fees and court costs.
Term. The Agreement is effective on the Effective Date and continues for the Subscription Term.
12.1. Termination for Cause. Either Party may terminate the Agreement, if the other Party: (a) fails to cure any material breach of the Agreement within 30 calendar days after receipt of written notice of such breach; (b) misappropriates or infringes one or more of the terminating Party’s Intellectual Property Rights, in which case the terminating Party may terminate the Agreement upon written notice to the other Party; (c) ceases operation without a successor; or (d) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such Party (and not dismissed within 60 calendar days). Failure to pay Fees when due constitutes a material breach. EchoTrail may terminate the Agreement upon notice to Licensor in the event that Licensor develops any products or services that are competitive with the EchoTrail Service. Termination is not an exclusive remedy and the exercise by either Party of any remedy under the Agreement will be without prejudice to any other remedies it may have under the Agreement, at law, or otherwise.
12.2. Effect of Termination. If the Agreement is terminated for one of the reasons set forth in Section 12.1, then on the effective date of termination: (a) all rights and licenses granted to Licensor will immediately terminate and Licensor must stop using the EchoTrail Service and permanently erase all of EchoTrail’s Confidential Information from devices and systems under Licensor’s control; and (b) all Fees and other payments then outstanding will become immediately due and payable.
12.3. Effect of Expiration. If the Agreement expires, then on the effective date of expiration (the “Expiration Date”): (a) all payments then outstanding will become immediately due and payable; (b) all rights granted to Licensor under the Agreement will terminate; and (c) Licensor must permanently erase all of EchoTrail’s Confidential Information from devices and systems under Licensor’s control.
12.4. Survival. Sections 1 (Defined Terms), 4 (License Conditions), 8 (Confidential Information), 9 (Ownership), 10 (Fees and Payment), 12.2 (Effect of Termination), 12.3 (Effect of Expiration), 12.4 (Survival), 13.3 (Disclaimers), 14 (Limitation of Liability), 15 (Open Source Software and Third- Party Software), 16 (Equitable Relief), 17 (Governing Law), 18 (Notice), and 19 (Miscellaneous) will survive expiration or termination of the Agreement for any reason.
Limited Warranty and Disclaimer of Warranties.
13.1. Limited Warranty. EchoTrail warrants to Licensor that the EchoTrail Service will, during the Term, operate in material conformity with EchoTrail’s applicable documentation provided regarding the delivery of the Data. EchoTrail does not warrant that the use of EchoTrail Service will be uninterrupted or error-free or protect against unauthorized access, loss, or alteration of data. EchoTrail’s sole and exclusive liability (and Licensor’s sole and exclusive remedy) for any breach of this warranty will be, in EchoTrail’s sole discretion: (a) to use commercially reasonable efforts to provide an error-correction or work-around that corrects the reported non-conformity, or (b) if EchoTrail determines such remedy to be impractical within a reasonable period of time, to refund any Fees (as designated in an Order) prepaid by Licensor to EchoTrail for the EchoTrail Service that are allocable to the period during which the EchoTrail Service was not in conformity with this warranty. EchoTrail will have no obligation with respect to a warranty claim unless notified of such claim in writing within the Term.
13.2. Exclusions. The above warranty does not apply if a warranty issue arises as a result of: (a) the use of a Licensor Product or any third-party hardware or software with the EchoTrail Service; (b) modifications made to the EchoTrail Service by any party other than EchoTrail; (c) accident, abuse or improper use of the EchoTrail Service; or (d) Licensor code or other third-party code.
13.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 13, THE ECHOTRAIL SERVICE, DATA, AND ANY ASSOCIATED DOCUMENTATION, ARE EACH PROVIDED “AS IS” AND ECHOTRAIL AND ITS LICENSORS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. ECHOTRAIL DOES NOT AND CANNOT WARRANT THAT ANY DATA IS COMPLETE, ACCURATE, OR CURRENT. IN ADDITION, THE COMPONENTS, ALGORITHMS, AND MACHINE LEARNING UNDERLYING AND CONSTITUTING THE BASIS FOR ANY DATA ARE FREQUENTLY CHANGING AND ECHOTRAIL DOES NOT WARRANT THAT ANY DATA ARE CORRECT OR COMPLETE. ECHOTRAIL DOES NOT WARRANT THAT ACCESS TO THE ECHOTRAIL SERVICE WILL BE CONTINUOUS OR UNINTERRUPTED, MEET LICENSOR’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULT, OR BE COMPATIBLE OR WORK WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES, INFORMATION, MATERIALS OR OTHER MATTER (INCLUDING ANY SOFTWARE, HARDWARE, FIRMWARE, SYSTEM OR NETWORK), OR BE SECURE, ACCURATE, COMPLETE, OR ERROR FREE. ALL OPEN-SOURCE SOFTWARE AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS IS”.
Limitation of Liability.
14.1. EXCLUSION OF DAMAGES. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE UNDER THE AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) INCREASED COSTS, DIMINUTION IN VALUE, OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (b) LOSS OF GOODWILL OR REPUTATION; (c) LOSS, INTERRUPTION, OR DELAY OF THE ECHOTRAIL SERVICE; (d) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF LICENSOR’S DATA, OR BREACH OF LICENSOR’S DATA OR SYSTEM SECURITY; (e) COST OF REPLACEMENT GOODS OR SERVICES; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
14.2. CAP. IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY AND ITS AFFILIATES ARISING OUT OF THE AGREEMENT, WHETHER ARISING UNDER OR RELATING TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL OF THE FEES PAID TO ECHOTRAIL UNDER THE AGREEMENT FOR THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
14.3. EXCEPTIONS. THE LIMITATIONS IN SECTIONS 14.1 OR 14.2 WILL NOT APPLY TO: (A) ONE OR MORE OF A PARTY’S OBLIGATIONS UNDER SECTION 10.6 (LICENSOR INDEMNIFICATION AND DEFENSE), OR SECTION 15 (FEES AND PAYMENT); OR (B) ONE OR MORE BREACHES OF SECTION 3 (LICENSE CONDITIONS), SECTION 10.3 (COMPLIANCE WITH LAWS), OR SECTION 12 (CONFIDENTIAL INFORMATION).
Open Source Software and Third-Party Software. The API may contain or be provided with components subject to the terms and conditions of third-party proprietary licenses (“Third-Party Software”) or free/libre and open source software licenses (“Open Source Software”). All Open Source Software that is distributed as part of the API is disclosed in the API’s source code. To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply in lieu of the terms of the Agreement with respect to such Open Source Software itself, including, without limitation, any provisions governing access to source code, modification, or reverse engineering. Licensor acknowledges that Licensor’s use of each Open Source Software component is subject to the open source license applicable to such component. EchoTrail makes no representations or warranties with regard to such Open Source Software and assumes no liability that may arise from the use of Open Source Software.
Equitable Relief. Licensor acknowledges that breach by it of one or more of its obligations under Sections 5 (License Conditions) or 12 (Confidential Information) will cause EchoTrail to suffer immediate and irreparable harm for which money damages would be an inadequate remedy. Therefore, Licensor agrees that if it breaches one or more of its obligations under Sections 5 (License Conditions) or 12 (Confidential Information), EchoTrail will be entitled to equitable relief as well as any additional relief that may be appropriate.
Governing Law. For any action relating to the Agreement, Licensor agrees to the following governing law and exclusive jurisdiction and venue in the state and federal courts sitting in the State of Colorado, City and County of Denver.
17.1. CISG; UCITA. The Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. The parties agree that the Uniform Computer Information Transaction Act, or any version thereof, adopted by any state located in the United States, in any form (the “UCITA”), will not apply to the Agreement. To the extent that the UCITA is applicable, the parties agree to opt out of the applicability of the UCITA pursuant to the opt-out provisions therein.
Notice. All of Licensor’s notices required under the Agreement must be in writing and are considered effective: (a) 1 business day after Licensor send an email to: (i) the email address for EchoTrail as listed on Licensor’s Order; or (b) 5 days after mailing, when sent via certified mail, return receipt requested or postage prepaid to the address set forth on an Order. By providing Licensor’s email address on an Order, Licensor agree to receive all required notices from EchoTrail electronically to that email address. Such notices are effective 1 business day after being sent. It is Licensor’s responsibility to change or update Licensor’s email address in accordance with the notice provisions of this Section19.
19.1. High Risk Activity. Licensor acknowledges and agrees that the EchoTrail Service is not intended for use with any high risk or strict liability activity, including, without limitation, air or space travel, technical building or structural design, power plant design or operation, or life support or emergency medical operations or uses, and EchoTrail makes no warranty regarding, and will have no liability arising from, any use of the EchoTrail Service in connection with any high risk or strict liability activity.
19.2. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under the Agreement (except for a failure to pay Fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including but not limited to any strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or of telecommunications or data networks or services, or refusal of approval or a license by a government agency.
19.3. Relationship. The Parties are independent contractors. There is no relationship of licensorship, joint venture, employment, franchise or agency created hereby between the Parties. Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.
19.4. English Language. Licensor acknowledges that any translation of the English language version of the Agreement provided by EchoTrail to Licensor is provided for Licensor’s convenience only, and that the English language version of the Agreement will take precedence over the translation in the event of any contradiction arising from translation.
19.5. Third-Party Beneficiaries. Except for the EchoTrail Indemnitees, there are no third party beneficiaries to the Agreement.
19.6. Severability. If any provision of the Agreement is held unenforceable, that provision will be enforced to the extent permissible by law and the remaining provisions will remain in full force.
19.7. Assignment; Change of Control. Licensor may not assign the Agreement without the prior written consent of EchoTrail, which will not be unreasonably withheld; provided, however, that Licensor may freely assign or transfer Licensor’s rights or obligations hereunder to any affiliate or any successor to Licensor’s business or assets to which the Agreement relates, whether by merger, sale of assets, sale of stock, reorganization, or otherwise. EchoTrail may assign the Agreement without Licensor’s consent, although EchoTrail may use commercially reasonable efforts to notify Licensor of any assignment.
19.8. Waiver. No provision of the Agreement will be deemed waived unless the wavier is in writing and signed by EchoTrail.
19.9. Modifications. The Agreement may only be modified or amended pursuant to a writing signed by the Parties.
19.10. Entire Agreement. The Agreement sets forth the entire, complete, and final understanding and agreement between EchoTrail and Licensor with regard to the subject matter of the Agreement, and supersedes any prior oral or written agreements or understandings between Licensor and EchoTrail with regard to such subject matter.