SONATYPE NEXUS IQ FOR ECLIPSE EULA AGREEMENT
READ THIS AGREEMENT CAREFULLY.
BY CLICKING ON THE “I ACCEPT” (OR SIMILAR CONSENT) BUTTON OR (A) DOWNLOADING, INSTALLING OR USING ALL OR ANY PORTION OF THE SONATYPE SOFTWARE, OR (B) ACCEPTING OR USING ALL OR ANY PORTION OF THE SONATYPE NEXUS IQ DATA SERVICE, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU.
IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, DO NOT CLICK TO ACCEPT OR OTHERWISE (A) DOWNLOAD, INSTALL OR USE ALL OR ANY PORTION OF THE SONATYPE SOFTWARE, OR (B) ACCEPT OR USE ALL OR ANY PORTION OF THE SONATYPE NEXUS IQ DATA SERVICE. YOU WILL NOT BE GIVEN ACCESS TO ANY SONATYPE SOFTWARE OR SONATYPE NEXUS IQ DATA SERVICE, UNLESS YOU ACCEPT THE TERMS OF THIS AGREEMENT. IF YOU HAVE PAID A LICENSE FEE FOR USE OF ANY SONATYPE SOFTWARE AND DO NOT AGREE TO THESE TERMS, YOU MAY RETURN SUCH PRODUCTS FOR A FULL REFUND PROVIDED YOU (A) DO NOT USE THE SONATYPE SOFTWARE AND (B) RETURN THE SONATYPE SOFTWARE WITHIN THIRTY (30) DAYS OF YOUR INITIAL PURCHASE.
IF YOU WISH TO USE THE SONATYPE SOFTWARE OR SONATYPE NEXUS IQ DATA SERVICE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT. THE LICENSES GRANTED AND SERVICES PROVIDED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
IF YOU HAVE ENTERED INTO A SEPARATE WRITTEN AGREEMENT WITH SONATYPE FOR USE OF SONATYPE SOFTWARE OR SONATYPE NEXUS IQ DATA SERVICES, THE TERMS AND CONDITIONS OF SUCH OTHER AGREEMENT SHALL PREVAIL OVER ANY CONFLICTING TERMS OR CONDITIONS IN THIS AGREEMENT.
This Sonatype Nexus IQ for Eclipse EULA Agreement (“Agreement”) is entered into by and between Sonatype, Inc. (“Sonatype”) and the customer (individual or entity) that has procured the Software or Sonatype Nexus IQ Data Service (each as defined below) for use as an end user (“Customer”). “Effective Date” means the date on which Customer accepts the terms and conditions of this Agreement.
As further set forth below, Customer may purchase any one or more of the following products and services from Sonatype under this Agreement:
Subscriptions to Sonatype Products (Sonatype Software and Sonatype Nexus IQ Data Service)
Sonatype Software includes functionality which calls upon data services hosted by Sonatype (Sonatype Nexus IQ Data Service). Terms in this Agreement which reference the Sonatype Nexus IQ Data Service apply to all use and access of the Sonatype Nexus IQ Data Service by Customer, whether via Sonatype Software or on a stand-alone Software-as-a-Service basis.
1. Definitions
“Affiliate” means any entity under the control of Customer where “control” means ownership of or the right to control greater than 50% of the voting securities of such entity.
“Application” means an individual computer program that is designed, built and/or maintained by Customer.
“Central Repository” means the publicly available repository managed by Sonatype to support the distribution of open source software components used in the software development process.
“Contractor” means any third party employed by Customer to perform services on behalf of Customer.
“Documentation” means the technical specification documentation generally made available by Sonatype to its Subscription customers with regard to a Product.
“Sonatype Nexus IQ Data Service” means the Sonatype hosted data service which provides quality, license and security information about software components and usage. The term “Sonatype Nexus IQ Data Service” shall also include any Documentation for Sonatype Nexus IQ Data Service provided to Customer under this Agreement.
“Open Source Software” means any third-party open source software or other similar community or free software of any type (such as, for example purposes only, any code licensed under any version of the GNU GPL, Mozilla or Apache licenses).
“Open Source Support” means the support services Sonatype provides for the Open Source Software as further set forth in Section 4.2.
“Product” means the applicable Sonatype Nexus IQ Data Service or Sonatype Software specified at the time of purchase.
“Reports” means any reports or data generated by use of the Sonatype Nexus IQ Data Service.
“Scan” means the usage instance of the Nexus IQ fingerprinting algorithms on an application or repository.
“Sonatype Software” means Sonatype’s proprietary software as specified on the applicable Order Form for the particular Subscription. The term “Sonatype Software” shall also include any Documentation for Sonatype Software and any support and maintenance releases of the same Sonatype Software product provided to Customer under this Agreement.
“Subscription” means the right of Customer to receive or access the applicable Product or Service during the Subscription Term.
“Subscription Term” is defined in Section 2.2.
“User" means a manager, engineer, administrator or other employee of Customer who may access or use any element of a Subscription. User may be further defined at the time of purchase.
2. Ordering Subscriptions and Services.
2.1 Purchase. Customer may purchase Subscriptions to (i) Sonatype Software, or (ii) Sonatype Nexus IQ Data Service.
2.2 Subscription Term and Renewals. The term of any Subscription shall be either twelve (12) months or thirty (30) days, at Customer’s discretion, commencing on the Subscription Start Date specified at the time of purchase (“Subscription Term”). If no Subscription Start Date is specified at the time of purchase, the Subscription Start Date shall be the date when Sonatype makes the Product or service available to Customer. Unless terminated earlier in accordance with Section 9, each Subscription Term will automatically renew upon expiration of the initial Subscription Term for additional successive terms of the same duration as the initial Subscription Term unless either party gives the other prior written notice of cancellation. The rates for any Subscription Term renewals shall be Sonatype’s then-current Subscription rates.
3. Products.
3.1 Sonatype Nexus IQ Data Service. If Customer purchases a Subscription which includes functionality offered by the Sonatype Nexus IQ Data Service, the following terms shall apply: Customer may access and use Sonatype Nexus IQ Data Service solely for its own benefit and in accordance with the terms and conditions of this Agreement, the end user technical documentation provided with the Documentation and any scope of use restrictions designated at the time of purchase. Use of and access to Sonatype Nexus IQ Data Service is permitted only by the number of employees of Customer specified at the time of purchase (“Permitted Users”). If Customer is given passwords to access Sonatype Nexus IQ Data Service on Sonatype’s systems, Customer shall require that all Permitted Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. Customer shall be responsible for any and all actions taken using Customer’s accounts and passwords.
3.2 Sonatype Software. If Customer purchases a Subscription that includes Sonatype Software, the following terms shall apply:
3.2.1 Subscription. Each Subscription entitles the number of specified Users to use the Sonatype Software specified on the Order Form and to receive related support services (as specified in Section 3.2.3 below) during the Subscription Term. All Sonatype Software and Documentation shall be delivered by electronic means unless otherwise specified on the applicable Order Form.
3.2.2 License Grant. Subject to all of the terms and conditions of this Agreement, during the Subscription Term, Sonatype grants to Customer a non-transferable, non-sublicensable, non-exclusive license to use the Sonatype Software internally, but only in accordance with the User restrictions specified at the time of purchase. Customer may copy and install on Customer's computers for use only by its employees and Contractors copies of Sonatype Software as reasonably necessary to support its licensed number of Users. Customer may also make a reasonable number of copies of the Sonatype Software for back-up and archival purposes.
3.2.3 Sonatype Software Support. Sonatype shall provide support services for the Sonatype Software pursuant to the terms of the support policy set forth at http://www.sonatype.com/Usage/Software-Support-Policy during the applicable Subscription Term.
3.3 Additional Users. Customer may purchase additional Users during a Subscription Term. The fee for such additional Users shall be the then current User rates, pro-rated for the remainder of the Subscription Term in effect at the time the additional Users are added.
3.4 Use by Affiliates and Contractors. Subject to the terms and conditions of this Agreement, Customer’s Affiliates and Contractors may use the licenses and access rights granted to Customer, provided that (a) such use is only for Customer’s benefit and (b) Customer agrees to remain responsible for each such Affiliate’s and Contractor’s compliance with the terms and conditions of this Agreement. The Affiliates’, Contractors’ and Customer’s use of the Product in the aggregate must be within the restrictions specified at the time of purchase. The Affiliate rights granted in this section shall not apply to any “enterprise wide” licenses unless Affiliate usage is designated in the applicable Order Form. Customer shall identify any Affiliates using the Product upon written request by Sonatype.
3.5 General Restrictions. Customer shall not (and shall not allow any third party to): (a) rent, lease, copy, distribute, market, commercialize, provide access to or sublicense to a third party any Product, and with respect to the Sonatype Software, any modified version or derivative work of the Sonatype Software created by or for Customer; (b) use any Product to create, provide, or incorporate any Product into any product or service provided to, a third party, (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain or use the source code or non-public APIs to Product, except to the extent expressly permitted by applicable law (and then only upon advance notice to Sonatype), (d) modify any Product or any Documentation, or create any derivative product from any of the foregoing, (e) remove or obscure any proprietary or other notices contained in any Product (including any Reports or data printed from Sonatype Nexus IQ Data Service), or (f) publicly disseminate information regarding the performance of the Product.
3.6 Free Plug-Ins. Sonatype may make generally available certain plug-ins to Sonatype Software on a no-charge basis (the “Free Plug-Ins”). Customer may use the Free Plug-Ins as Customer would the Sonatype Software licensed to Customer hereunder, but the Free Plug-Ins and those features of the Sonatype Nexus IQ Data Service that may be accessible via the Free Plug-Ins are provided by Sonatype “AS IS”. Furthermore, Sections 10.1 (Sonatype Nexus IQ Data Service Limited Warranty), 10.2 (Sonatype Software Limited Warranty) and 12 (Indemnification) of this Agreement do not apply to the Free Plug-Ins or any portion of the Sonatype Nexus IQ Data Service accessible via the Free Plug-Ins.
4. Open Source Software.
4.1 Open Source Software. Sonatype may provide Open Source Software to Customer in connection with certain Subscriptions if specified at the time of purchase. Use of such Open Source Software is subject to the terms set forth in Section 4.3 below.
4.2 Open Source Support. This Section 4.2 shall apply if Customer purchases a Subscription which includes Open Source Software. Sonatype shall provide support services for the Open Source Software pursuant to the terms of the support policy set forth at http://www.sonatype.com/Usage/Software-Support-Policy during the applicable Subscription Term. For avoidance of doubt, Open Source Support only covers Open Source Software specified at the time of purchase.
4.3 Special Provisions Regarding Open Source Software.
4.3.1 Open Source Software. Sonatype may make certain Open Source Software directly available to Customer as a part of a Subscription if specified at the time of purchase or as artifacts retrieved through the Central Repository or any other public repository. Any such Open Source Software is not licensed by or through Sonatype. Customer is solely responsible for determining its right to copy, modify or otherwise use such Open Source Software code and for complying with the third party open source software license associated with such code. SONATYPE MAKES NO WARRANTIES OR REPRESENTATIONS AND WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY OPEN SOURCE SOFTWARE.
4.3.2 Support. Open Source Support covers Open Source Software which is not licensed or controlled by Sonatype. Customer acknowledges that all obligations of Sonatype with respect to such code shall be on a “reasonable commercial efforts” basis. As a general policy, Sonatype shall make available under its support services for any Open Source Software any bug fixes, error corrections or modifications which Sonatype creates for such third party product under the version of the open source license under which such corrected code was initially licensed. ANY AND ALL BUG FIXES, ERROR CORRECTIONS OR MODIFICATIONS TO OPEN SOURCE SOFTWARE PROVIDED BY SONATYPE ARE PROVIDED “AS IS”. SONATYPE SHALL HAVE NO LIABILITY WHATSOEVER WITH RESPECT TO OPEN SOURCE SOFTWARE OR ANY BUG FIXES, ERROR CORRECTIONS OR MODIFICATIONS THERETO PROVIDED BY SONATYPE.
5. Customer Data.
5.1 Customer Data. In connection with Customer’s use of the Sonatype Nexus IQ Data Service under this Agreement, Customer may provide Customer Data to Sonatype. “Customer Data” means any business information, such as Internet Protocol address(es) or other data of any type which is provided by Customer to Sonatype in connection with Sonatype Nexus IQ Data Service, including information input by Customer, or provided to Sonatype for input, into the Sonatype Nexus IQ Data Service. Customer hereby authorizes Sonatype to use such data, solely to the extent necessary to provide Sonatype Nexus IQ Data Services to Customer. For the avoidance of doubt, except for the limited rights granted in this Agreement, Customer retains all right, title and interest in and to the Customer Data (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights).
5.2 Data Representations. Customer shall ensure that Customer’s use of Sonatype Nexus IQ Data Service and all Customer Data is at all times compliant with Customer’s privacy policies and all applicable local, state, federal and international law, regulations and conventions. Customer is solely responsible for the accuracy, content and legality of all Customer Data. Customer represents and warrants to Sonatype that Customer has sufficient rights in the Customer Data to grant the rights granted to Sonatype in this Section 5 and that the rights granted to Sonatype for the Customer Data do not infringe the rights of any third party. Sonatype has no obligation to store any Customer Data or to store or deliver any Customer Data to Customer. Sonatype may destroy the Customer Data at any time in its sole discretion.
6. Reports. Elements of the Sonatype Nexus IQ Data Service may allow Customer to generate Reports. Customer may use and duplicate Reports for any internal business purpose, but use of Reports is subject to the same restrictions as use of the Sonatype Nexus IQ Data Service as set forth in Section 3.5 (General Restrictions).
7. Ownership. Notwithstanding anything to the contrary contained herein, Sonatype and its suppliers have and will retain all rights, title and interest in and to the Product, Training Materials and Deliverables (collectively, the “Sonatype Materials”) (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights). All right, title and interest (including any and all intellectual property rights) in and to any data from the Central Repository shall remain with the owners specified in the Central Repository. Customer acknowledges that it is obtaining only a limited right to access the Sonatype Materials, and that irrespective of any use of the words “purchase,” “sale” or like terms hereunder no ownership rights are being conveyed to Customer under this Agreement or otherwise. All copies, improvements, updates, modifications or enhancements of the Sonatype Materials shall remain the property of Sonatype (including any changes which incorporate any ideas, feedback or suggestions of Customer). All rights not granted by Sonatype are reserved.
8. Fees and Payment. Customer shall pay all fees specified at the time of purchase for each Product purchased from Sonatype. All payments are non-refundable (except as expressly set forth in this Agreement) and shall be made in U.S. dollars within thirty (30) days of the purchase, unless otherwise specified at the time of purchase. Customer shall be responsible for all taxes, withholdings, duties and levies arising from the order (excluding taxes based on the net income of Sonatype). Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less. If Customer has purchased Products through a Sonatype reseller, fees payable to the reseller shall be as set forth in the applicable reseller order form.
9. Term of Agreement.
9.1 Term and Termination. This Agreement is effective as of the Effective Date and expires on such date on which all of Customer’s rights to access, use or receive any Sonatype product or service, including any Subscriptions, have terminated (the “Term”). Either party may terminate this Agreement (including all related SOWs) if the other party: (i) fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach; (ii) ceases operation without a successor; or (iii) 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 sixty (60) days thereafter). Termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. Upon any expiration or termination of this Agreement, Customer shall cease any and all use of the Product, and destroy all copies of Sonatype Software and so certify to Sonatype in writing.
9.2 Survival. Sections 3.5 (General Restrictions), 5.2 (Data Representations), 6 (Reports), 7 (Ownership), 8 (Fees and Payment), 9 (Term of Agreement), 10.3 (Disclaimer), 10.4 (Reports Disclaimer), 11 (Limitation of Remedies and Damages), 13 (Confidential Information) and 14 (General) shall survive any termination or expiration of this Agreement.
10. Warranty and Disclaimer.
10.1 Sonatype Nexus IQ Data Service Limited Warranty. If Customer purchases a Subscription which includes functionality offered by the Sonatype Nexus IQ Data Service, the following terms shall apply: Sonatype warrants, for Customer’s benefit only, that Sonatype Nexus IQ Data Service will operate in substantial conformity with the applicable Documentation. Sonatype does not warrant that Customer’s use of the Sonatype Nexus IQ Data Service will be uninterrupted or error-free, nor does Sonatype warrant that it will review the Customer Data for accuracy or that it will preserve or maintain the Customer Data without loss. Sonatype’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, in Sonatype’s sole discretion and at no charge to Customer, to use commercially reasonable efforts to provide Customer with an error correction or work-around that corrects the reported non-conformity, or if Sonatype determines such remedies to be impracticable, to allow Customer to terminate the Subscription Term and receive as its sole remedy a refund of: (a) the monthly subscription fees specified in the applicable Order Form which are allocable to the thirty (30) day period prior to the date the warranty claim was made and (b) any fees Customer has pre-paid for use of Sonatype Nexus IQ Data Service or related services it has not received as of the date of the warranty claim. The limited warranty set forth in this Section 10.1 shall not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which the condition giving rise to the claim first appeared, or (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services or (iii) to use provided on a no-charge or evaluation basis.
10.2 Sonatype Software Limited Warranty. If Customer purchases a Subscription that includes Sonatype Software, the following terms shall apply: Sonatype warrants to Customer that for a period of ninety (90) days from the Effective Date (the “Sonatype Software Warranty Period”), the Sonatype Software shall operate in substantial conformity with the Documentation. Sonatype does not warrant that Customer’s use of the Sonatype Software will be uninterrupted or error-free or that any security mechanisms implemented by the Sonatype Software will not have inherent limitations. Sonatype’s sole liability (and Customer’s exclusive remedy) for any breach of this warranty shall be, in Sonatype’s sole discretion, to use commercially reasonable efforts to provide Customer with an error-correction or work-around which corrects the reported non-conformity, to replace the non-conforming Sonatype Software with conforming Sonatype Software, or if Sonatype determines such remedies to be impracticable within a reasonable period of time, to allow the Customer to terminate the Subscription Term and receive as its sole remedy a refund of the Subscription fee paid for the non-conforming Sonatype Software. Sonatype shall have no obligation with respect to a warranty claim unless notified of such claim within the Sonatype Software Warranty Period. The limited warranty set forth in this Section 10.2 shall not apply: (i) if the Sonatype Software is used with hardware or software not specified in the Documentation; (ii) if any modifications are made to the Sonatype Software by Customer or any third party; (iii) to defects in the Sonatype Software due to accident, abuse or improper use by Customer; or (iv) items provided on a no charge or evaluation basis.
10.3 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 10, THE SONATYPE MATERIALS AND ALL RELATED SERVICES AND REPORTS ARE PROVIDED “AS IS”. NEITHER SONATYPE NOR ITS SUPPLIERS MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE LIMITED WARRANTY PERIOD.
10.4 Reports Disclaimer. Without limiting the above disclaimer in Section 10.3, the following additional disclaimers apply to any Reports: SONATYPE MAKES NO WARRANTIES OR REPRESENTATIONS AND WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY INFORMATION PROVIDED IN REPORTS, INCLUDING THE ACCURACY OR LEGALITY OF SUCH INFORMATION. Customer should further be aware that the license attribute, security vulnerability and other information in Reports is based solely on publicly available information. Such information has inherent limitations and may not be accurate or complete. Customer should independently review each Open Source Software component and applicable license Customer is considering using within Customer’s environment or in any product or service. In addition, Reports may refer to the terms of certain Open Source Software licenses but these Reports do not constitute legal advice or guidance. Customer should read each Open Source Software license in full and consult with an attorney regarding the meaning of any Open Source Software license.
11. Limitation of Remedies and Damages.
11.1 NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
11.2 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, SONATYPE’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CUSTOMER SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO SONATYPE UNDER THIS AGREEMENT.
11.3 THIS SECTION 11 SHALL NOT APPLY TO CUSTOMER WITH RESPECT TO ANY CLAIM ARISING UNDER THE SECTIONS TITLED “PRODUCTS”, “CUSTOMER DATA” OR “CONFIDENTIAL INFORMATION.”
11.4 The parties agree that the limitations specified in this Section 11 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
12. Indemnification. Sonatype shall indemnify and hold harmless Customer from and against any claim of infringement of a U.S. patent, U.S. copyright, or U.S. trademark asserted against Customer by a third party based upon Customer’s use of the Product in accordance with the terms of this Agreement, provided that Sonatype shall have received from Customer: (i) prompt notice of such claim (but in any event notice in sufficient time for Sonatype to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (iii) all reasonable necessary cooperation of Customer. If Customer’s use of any of the Product is, or in Sonatype’s opinion is likely to be, enjoined due to the type of infringement specified above, or if required by settlement, Sonatype may, in its sole discretion: (a) substitute for the Product substantially functionally similar programs and documentation; (b) procure for Customer the right to continue using the Product; or if (a) and (b) are commercially impracticable, (c) terminate the Agreement and refund to Customer the pro-rata portion of the Subscription fees paid by Customer allocable to the unused remainder of the Subscription Term. The foregoing indemnification obligation of Sonatype shall not apply: (1) if the Product is modified by any party other than Sonatype, but solely to the extent the alleged infringement is caused by such modification; (2) the Product is combined with other non-Sonatype products or process not authorized by Sonatype, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Product; (4) to any claim that arose as a result of any Customer Data; (5) to any unsupported release of the Product; or (6) to any Open Source Software or other third-party code contained within the Product or delivered as a part of the Subscription. THIS SECTION 12 SETS FORTH SONATYPE’S AND ITS SUPPLIERS’ SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
13. Confidential Information. Each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any services, software, documentation or technical information provided by Sonatype (or its agents), performance information relating to the Product, the Sonatype Materials and the terms of this Agreement shall be deemed Confidential Information of Sonatype without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (d) is independently developed by employees of the Receiving Party who had no access to such information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
14. General.
14.1 Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Sonatype may assign this Agreement to any affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of Sonatype’s assets or voting securities. Customer may not assign or transfer this Agreement, in whole or in part, without Sonatype’s prior written consent. Any attempt by Customer to transfer or assign this Agreement without such written consent will be null and void.
14.2 Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
14.3 Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to the subject matter hereof shall be the California state and United States federal courts located in Santa Clara County, California, and both parties hereby submit to the personal jurisdiction of such courts.
14.4 Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
14.5 Notices and Reports. Any notice or report hereunder shall be in writing to the notice address set forth above and shall be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if sent by certified or registered U.S. mail (return receipt requested); or (c) one day after it is sent if by next day delivery by a major commercial delivery service.
14.6 Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
14.7 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that Sonatype offers subscription-based products and that, in order to provide improved customer experience, Sonatype may make changes to Sonatype products (including the Sonatype Nexus IQ Data Service or the Subscription offerings) or Documentation. In such event, Sonatype will update the Documentation accordingly.
14.8 Audit Rights. Upon Sonatype’s written request, Customer shall furnish Sonatype with a signed certification certifying that the Product is being used pursuant to the terms of this Agreement, including any access and user limitations. With prior reasonable notice of at least ten (10) days, Sonatype may audit the use of the Product by Customer provided such audit is during regular business hours. Customer is responsible for such audit costs only in the event the audit reveals that Customer’s use of the Product is not in accordance with the permitted scope of use.
14.9 Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, 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.
14.10 Customer Acknowledgement. Customer agrees that Sonatype may disclose Customer as a customer of Sonatype.
14.11 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this 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.
14.12 Government End-Users. The Sonatype Software is commercial computer software. If the user or licensee of the Sonatype Software is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Sonatype Software, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Sonatype Software was developed fully at private expense. All other use is prohibited.
14.13 Export Compliance. Customer acknowledges that the Sonatype Materials are subject to export restrictions by the United States government and import restrictions by certain foreign governments. Customer shall not and shall not allow any third-party to remove or export from the United States or allow the export or re-export of any part of the Sonatype Materials or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Customer agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Sonatype Materials are further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government.
14.14 Third-Party Code. If designated in the Documentation, the Sonatype Software may incorporate certain Open Source Software. Ownership, use, warranty and modification rights with respect to any such designated code shall be as expressly set forth in the applicable license under which such code is licensed.
14.15 Transmission of Information by Sonatype Software for Error Detection and Correction Purposes. Customer understands and acknowledges that the Sonatype Software may contain a feature that sends technical information regarding the operation of the Sonatype Software on Customer’s computer systems to Sonatype. Any such information will be used by Sonatype solely to detect, diagnose or correct errors or otherwise improve the Sonatype Software. Customer may disable this feature at any time at its sole discretion, and Sonatype will provide technical support regarding this feature at Customer’s request at no charge.
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