End-User License Agreement: Peach Fuzzer™ Academic Purpose License
IMPORTANT: CAREFULLY READ THIS END USER LICENSE AGREEMENT BEFORE ACCESSING OR USING THE SOFTWARE OR FEATURES. BY ACCESSING OR USING THE SOFTWARE OR FEATURES, YOU AUTOMATICALLY ACKNOWLEDGE, ACCEPT AND AGREE TO ALL THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR OTHERWISE USE THE SOFTWARE AND ACCOMPANYING FEATURES.
THIS END-USER LICENSE AGREEMENT (the “Agreement”) is a legally binding and enforceable agreement between Peach Fuzzer, LLC, a Washington limited liability company (“Company”) and the customer, individual or entity, set forth on the applicable Customer Invoice (“Customer”), governing the Customer’s license to and use of the Software and Features, as well as the Customer’s License to create Customer Academic Peach Pits.
- “Academic Purpose” means any academic purpose related to research that does not have any commercial application or commercial use, and which will not be commercially exploited by Customer.
- “Customer Invoice” means that certain final invoice issued by the Company to the Customer that identifies the specific license to products and services of the Company that the Customer has purchased.
- “Definition File(s)” means any Peach Pit files, development tools, and software programs developed by the Company and provided in the Peach Pit library subject to a current Peach Pit License. For the avoidance of doubt, Definition Files will not be provided under a Peach Pit License in connection with an Academic Purpose License. Only Customer Academic Peach Pits shall be used in connection with the Software and Features.
- “Features” mean the features and Software capabilities made available to Customer under a paid and active Peach Fuzzer Academic Purpose License for use of the Software, and includes development tools, software programs, documentation, the applicable Peach Pit License (as identified on the applicable Customer Invoice), public forum access, basic support services and support materials.
- “Internal Networks” refer to the Customer’s Internal Networks and cloud service providers (internal use only).
- “Library” or “File Library” means any and all versions of the support file library containing Peach Pits and developed by the Company.
- “Licenses” mean, collectively, the Peach Fuzzer Enterprise Solution License, the Peach Pit License and the Peach Fuzzer Academic Developer License granted hereunder.
- “License Fees” mean the amounts shown as due and owing as fees payable to the Company pursuant to the Customer Invoice for the Licenses requested by Customer.
- “Per Seat” refers to the one, single designated, named end-user that will access and use the Software and Features provided under the Peach Fuzzer Enterprise Solution License for and/or the Peach Fuzzer Academic Developer License for the duration of the license Term. The Licenses are non-transferable and may only be used by the user listed in the Customer Invoice.
- “Software” refers to the Peach Fuzzer™ software and associated software components, including development tools, software programs, documentation, and accompanying features available under Customer’s applicable Peach Fuzzer Enterprise Solution License.
- “Support Services” refer to basic support services consisting of email helpdesk support available Mon-Fri (non-U.S. Holidays) from 9am-5pm PST for deployment and bug fixes.
- “Support Materials” refer to documentation, tools, information, and materials provided by the Company under the subscription for Support Services.
- “Territory” means that certain geographical territory identified on the applicable Customer Invoice.
- GRANT OF PEACH FUZZER ACADEMIC PURPOSE LICENSE. Subject to Customer’s full and continued compliance with this Agreement, the Company hereby grants to the Customer a limited, revocable, non-exclusive, non-transferrable, non-assignable, non-exclusive license for each of the named or designated users, on a Per Seat basis, to concurrently use and run one instance of the Academic Purpose Software (including accompanying Features and updates, but excluding any Definition Files) on one internal Customer computer (Per Seat), for Academic Purposes only, solely within the Territory and for the Term, and subject to the terms and conditions of this Agreement (the “Peach Fuzzer Academic Purpose License”). The Customer is expressly prohibited from publishing, or otherwise disclosing to any third party, the Academic Purpose Software. For the avoidance of doubt, Definition Files are not included within the Peach Fuzzer Academic Purpose License.
- GRANT OF PEACH PIT LICENSE. Subject to Customer’s full and continued compliance with this Agreement, the Company hereby grants to the Customer a limited, revocable, non-exclusive, non-transferrable, non-assignable, non-exclusive license for each of the named or designated users, on a Per Concurrency basis, to concurrently use and run one instance of each of those certain Definition Files as provided by the Company to Customer from time to time on one internal Customer computer (Per Seat), for Academic Purposes only, solely within the Territory and for the Term, and subject to the terms and conditions of this Agreement (the “Peach Fuzzer Academic Peach Pit License”). The Customer is expressly prohibited from publishing, or otherwise disclosing to any third party, any Peach Fuzzer Academic Peach Pit. Nothing herein shall require the Company to provide the Customer with any Peach Pits or provide Customer with the benefit of this Peach Fuzzer Academic Peach Pit License.
- GRANT OF ACADEMIC DEVELOPER & DERAVITIVE LICENSES. The following licenses to be used exclusively in connection with the Peach Fuzzer Academic Purpose License and the Peach Fuzzer Academic Peach Pit License, and for no other purpose.
- Subject to Customer’s full and continued compliance with this Agreement, the Company hereby grants to the Customer a limited, revocable, non-exclusive, non-transferable, non-assignable, non-exclusive license for each of the named or designated developers (each, a “Developer”), on a Per Seat basis, to develop and create customized Definition Files and Software extensions that are functionally compatible with and used solely in connection with the Software and Features (each a “Customer Peach Pit” subject to Section 12) on one internal Customer computer or virtual machine (Per Seat), solely within the Territory and for the Term, and subject to the terms and conditions of this Agreement (the “Developer License”).
- Subject to Customer’s full and continued compliance with this Agreement, in connection with the Developer License, the Company hereby grants to the Customer a limited, revocable, non-exclusive, non-transferable, non-assignable, non-exclusive license for the named Developer(s), on a Per Seat basis, to adapt, modify and create derivatives of any Company Definition Files for which Customer has a valid Peach Pit License (each a “Customer Peach Pit” subject to Section 12) on one internal Customer computer or virtual machine (Per Seat), solely within the Territory and for the Term, and subject to the terms and conditions of this Agreement (the “Derivative License”).
- TERMS AND CONDITIONS OF LICENSES. The following terms and conditions apply to all Licenses granted hereunder.
- No Sale. The Customer’s access to and use of the Software and Features is pursuant to the applicable Licenses described in this Agreement. The Customer acknowledges and agrees that their access to and use of the Software and Features does not constitute any form of sale. No conduct, acts or omissions of either Customer or the Company shall be construed as altering the terms or conditions of any Licenses granted herein, or creating any form of transfer or sale. The Company expressly reserves all rights, title and interest in and to the Software and Features, and all related functionality.
- Per Seat Use Only. The Licenses issued hereunder are issued on a Per Seat basis only, limited to the named or designated users (or Developers) only, and does not allow use by multiple end-users on multiple computers, regardless of whether such use is concurrent.
- Features and Updates. The Licenses may extend to any updates, modifications and additional functionality provided by the Company during the Term, in the Company’s sole and absolute discretion.
- The Licenses granted herein permit Customer to utilize the Software and Customer Academic Peach Pits together with their respective Features for the limited purpose of fuzz testing to one single Job, at a time. A single “Job” refers to running one instance of the Software with a single instance of a Customer Academic Peach Pit to fuzz test the same, single target internally within the Customer’s network. Customer is restricted to performing one single job Per Seat. Customer is expressly prohibited from offering any form of SaaS (Software as a Service) services to any third party utilizing any Licenses granted hereunder.
- Customer Academic Peach Pits. Customer Academic Peach Pits may not be used in the production of libelous, defamatory, fraudulent, lewd, obscene or pornographic material, or any material that infringes upon any third party intellectual property rights, or in any otherwise unlawful manner.
- Server Use. Customer may install the Software on computer file server(s) within Customer’s Internal Network only for use of the Software initiated by the named individual(s) from a computer within the same Internal Network, pursuant to the Peach Fuzzer Enterprise Solution License. The total number of users able to use the Software on such Computer file server(s) may not exceed the number of valid Per Seat Licenses maintained by the Customer. By way of example, the foregoing does not permit the Customer to install or access (either directly or through commands, data or instructions) the software: (i) from or to a computer not part of the Internal Network or a network under its control; (ii) from services available to the public; or (iii) to transfer to any individual or entity to use, download, copy or otherwise benefit from the functionality of the software unless licensed to do so by the Company.
- Backup Copy. Customer may make a reasonable number of backup copies of the Software, provided the backup copies are not installed or used for other than archival purposes, and are not used in any way that violates the applicable license.
- Source Code; Confidential; Trade secret. In the event that in connection with any of the Licenses granted herein, Company shares or otherwise discloses to the Customer any source code with respect to the Software, Definition Files or their respective Features, the Customer agrees that the Company source code is strictly confidential, and that Customer shall not use the source code for any purpose other than in strict compliance with the Licenses granted. Customer agrees that this obligation of non-disclosure, non-use and confidentiality is perpetual, material and survives termination of this Agreement. Customer it has or will have an appropriate agreement with each of Customer’s employees sufficient to comply with all of the terms of this Agreement and that Customer will disclose source code only to those Developers who have an absolute need to know. Customer shall use the same degree of care as Customer uses to protect its own most highly protected confidential information and trade secrets, but no less than a reasonable degree of care, to protect the secrecy of and avoid any unauthorized disclosure or use of Confidential Information. Customer shall not make any copies of any source code unless Company previously approves the same in writing. The Customer expressly agrees that the Company’s source code contains intellectual property that the Company from which the Company derives independent financial benefit, and has taken significant and reasonable measures to keep secret, and as a result constitutes a trade secret pursuant to the Uniform Trade Secrets Act, as adopted in Washington, RCW 19.108, et seq. (“UTSA”), and that any use of the Confidential Information by Customer in violation of any portion of this Agreement would constitute a misappropriation under the UTSA, for which Company would be entitled to immediate injunctive relief. In addition to any other remedies the Company may have, any breach of this provision or unauthorized use or replication of the source code will result in the automatic termination of all Licenses granted herein, and all amounts paid by Customer to the Company shall become non-refundable. Customer agrees that the terms and conditions of this provision are reasonable and necessary for the Company to protect its trade secrets.
- RESTRICTIONS ON USE. The following terms and conditions apply to both the Peach Fuzzer Enterprise Solution License and the Peach Pit License.
- Copyright and Trademark Notices. All copies of Software, Features, documentation, and other items made available by the Company or in the Customer’s possession or control must contain the same copyright, trademark, patent, and other proprietary notices that appear therein, as applicable.
- No Modifications; Derivatives. Customer shall not modify, adapt or translate the Software support components, or other such components or Features, or make any derivative works thereof.
- No Reverse Engineering. Subject to the limited exceptions under an Academic Developer License, Customer hereby agrees NOT to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of any Software or their respective component parts provided by the Company except to the extent that Customer may be expressly permitted under applicable law to decompile only in order to achieve interoperability with authorized software.
- No Unbundling. The Software provided by the Company may include various applications, utilities, and component parts, may support multiple platforms and languages, and may be provided to the Customer on multiple media or in multiple copies. Notwithstanding the foregoing, any Software provided to Customer constitutes a single, unified product to be used as a single, unified product on internal computers as permitted by this Agreement. Customer is not required to use all component parts of the Software. Customer is not permitted to unbundle the component parts of the Software for use on different computers without express permission. Customer shall NOT unbundle or repackage for resale any Software or its component parts, including any additional functionality provided with future updates, support services, or otherwise made available.
- No Transfers Permitted. Customer will not rent, lease, sell, sublicense, assign, distribute, encumber or otherwise transfer any Software or any accompanying features, in any form, or authorize or make copies available to another individual or entity.
- A In consideration of the Licenses granted hereunder, Customer hereby irrevocably agrees to expressly attribute to and credit “Peach Fuzzer” for any and all works, developments, research, findings, discoveries, inventions, or other creations based on, arising out of, or related directly or indirectly to Customer’s use of any Software, Features or License granted herein, including without limitation in any research paper, vulnerability report or bug information statement regarding any finding through the Customer’s use of the Software. The Customer shall inform the Company of any such finding via email at firstname.lastname@example.org
- No Commercial Use. Customer agrees that it shall not use any Software, Features or License granted herein for commercial use, profit, exploitation or gain of any kind, and that its use of the Software, Features or Licenses granted herein are solely for Academic Purposes only. To the extent Customer, or any third party realizes, without limitation, any commercial gain, benefit, privilege or income related to the Customer’s use of the Software, Features or Licenses granted herein (collectively “Commercial Benefits”), the Customer agrees that such Commercial Benefits belong solely and exclusively to the Company, and Customer shall immediately disclose such Commercial Benefits and remit the same to Company.
- Updates. The Company may, from time to time in its sole discretion, release updates to the Software and Features on a periodic basis. Updates will be sent via email to Customer provided that Customer has current, valid and applicable Licenses. Failure to maintain the applicable valid Licenses will result in not receiving updates. The Company will not be liable for incidents that occur as a result of failure to update Software in accordance with its policies.
- SUPPORT. The Company is under no obligation to provide support or maintenance of any kind with respect to the Academic License granted hereunder.
- TERM. The term of this Agreement (the “Term”) shall take effect immediately on the date Customer purchases valid Licenses for the Software (such date, the “Effective Date”) and will continue for the license period identified in the applicable Customer Invoice (“Initial License-Term”).
(a) By the Company. The Company may terminate this Agreement for any reason, upon 7‑days’ written notice. The Company may terminate this Agreement at any time upon breach by the Customer, including without limitation, breach for non-attribution or unauthorized commercial use.
(b) Effect of Termination. Upon Termination, the following procedures shall apply (i) all Licenses and subscriptions granted under this Agreement shall be automatically revoked and terminated; and (ii) certain covenants set forth in this Agreement will survive, but shall not imply or create any continued license or right to use the Software or their respective accompanying features or services after the date of termination.
(c) No Refunds. All amounts paid pursuant hereto are non-refundable. In event of early termination of this Agreement by either party, Customer acknowledges that no refunds or other amounts prorated will be issued or refunded to Customer.
- INTELLECTUAL PROPERTY.
(a) Ownership by Company. All Software, Definition Files, and their respective updates and Features provided under any Licenses in this Agreement are proprietary, and the Company exclusively owns all right, title and interest in the same, including without limitation, any copyrights, patent rights, trademark rights and other intellectual property rights. Furthermore, the structure, organization and code of the Software, Definition Files, and their respective updates and Features constitute designated valuable trade secrets and confidential proprietary information of the Company. Software Definition Files, and their respective updates and Features provided under the license are protected by United States’ Copyright and related proprietary laws, including but not limited to the intellectual property laws of the United States and other countries, and international treaty provisions. Except as expressly stated herein, this Agreement does not grant Customer any intellectual property rights, interest, or title to or in the Software, Definition Files, or their respective updates and Features. The Company hereby exclusively reserves all rights not expressly granted herein.
(b) Customer Academic Peach Pits; Academic Developer License. All Customer Academic Peach Pits developed solely by Customer pursuant to the Academic Developer License granted herein shall be and remain the exclusive property of Customer, provided, however, that such Customer Academic Peach Pits cannot be used independently or without a valid license (e.g., Professional or Enterprise Solution), and where applicable, a valid Peach Pit License, and shall not be used for commercial purposes other than the limited purpose of fuzz testing to one single Job at a time, and further provided, that Customer hereby automatically grants back to the Company an irrevocable, perpetual, non-exclusive, royalty-free, fully-paid, worldwide license to use (for any purpose), exploit, enjoy, modify and make derivatives of any and all Customer Academic Peach Pits and research, and that Customer shall provide the Company copies of the same upon request (the “Additions License”). Customer may not distribute the Customer Academic Peach Pits on a stand-alone basis (i.e., circumstances in which Customer Academic Peach Pits constitute the primary value of the product being distributed). Customer Academic Peach Pits may not be used in the production of libelous, defamatory, fraudulent, lewd, obscene or pornographic material, or any material that infringes upon any third-party’s intellectual property rights, or in any otherwise unlawful manner. Nothing herein shall prohibit the Company from independently developing new Definition Files that have the same, or similar functionality as any Customer Academic Peach Pits, even where such new Definition Files might otherwise be deemed to infringe upon such Customer Academic Peach Pit.
(c) Customer Representations and Warranties. The Customer warrants that all Customer Academic Peach Pits developed hereunder will not contain any computer code (i) designed to disrupt, disable, harm, or otherwise impede in any manner, including aesthetical disruptions or distortions, the operation thereof, or any other associated software, firmware, hardware, computer system or network (sometimes referred to as “viruses” or “worms”); (ii) that would disable or impair in any way the operation thereof based on the elapsing of a period of time, the exceeding of an authorized number of users or copies, or the advancement to a particular date or other numeral (sometimes referred to as “time bombs”, “time locks”, or “drop dead” devices); or (iii) that would permit disablement or impairment (sometimes referred to as “traps”, “access codes” or “trap door” devices), or any other similar harmful, malicious or hidden procedures, routines or mechanisms that would cause the Software or related Functionality to cease functioning or to damage or corrupt data, storage, programs, equipment or communications, or otherwise interfere with operations. The Customer further represents and warrants that the Customer’s use of the Software, Features and Customer Academic Peach Pits shall not infringe, violate or in any manner contravene, breach or constitute an unauthorized use or misappropriation of any patent, copyright, trademark, license or other property or proprietary right of any third party or constitute the unauthorized use or misappropriation of a trade secret.
- LIMITED WARRANTY. The Company only warrants that the Software, Definition Files, or their respective updates and Features as provided will be free from material defects in material and manufacture for a period of thirty (30) days from the date of delivery to Customer, and that the Software will possess substantially similar characteristics and functionality as listed on the Company’s website and datasheets as of the date of this Agreement. The Company does not warrant that the functions contained in the Software, Definition Files, or their respective updates and Features, will meet Customer’s requirements or that the operation thereof will be uninterrupted or entirely error free, appear or perform precisely as described, or comply with regulatory requirements. The Customer acknowledges and agrees that the functionality of the Software, Definition Files, and their respective updates and Features depends greatly on the Customer’s use, input and Internal Network, and that Customer error may impact the performance and results thereof. This warranty extends only and directly to the Customer that purchased valid Licenses from the Company or an authorized distributor. All warranty claims must be made, along with proof of purchase, to the Company’s Customer Support within thirty (30) days from the date of delivery to Customer.
- DISCLAIMER OF WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LIMITED WARRANTIES IN SECTION 13 ARE EXCLUSIVE. the Company PROVIDES THE SOFTWARE, DEFINITION FILES, UPDATES AND ACCOMPANYING FEATURES, AND ACCESS TO ANY WEBSITES, ONLINE SERVICES, AND CERTIFICATE AUTHORITY SERVICES “AS-IS” AND “WITH ALL FAULTS and defects” AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE, SECURITY, NON-INFRINGEMENT, INTEGRATION, MERCHANTABILITY, SATISFACTORY QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE.
- LIMITATION OF LIABILITY. If any OF the Software, Definition Files, or their respective updates and Features do not perform substantially in accordance with the limited warranty, OR IN THE EVENT THE COMPANY BREACHES THIS AGREEMENT, the entire liability of the Company and Customer’s exclusive remedy will be limited to, at the Company’s option, EITHER (A) replacement of the Software, Definition Files, or their respective updates and Features; or (B) refund of any license fees paid by Customer to the Company therefor. IN NO EVENT WILL the Company OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING LOSS OF USE, DATA, OR PROFITS) WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF the Company OR ITS LICENSORS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. the Company’S AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT OF LICENSE FEES PAID, IF ANY, IN THE THEN APPLICABLE TERM.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO CUSTOMER, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO CUSTOMER, AND CUSTOMER MIGHT HAVE ADDITIONAL RIGHTS.
- Customer INDEMNIFICATION. CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS the Company, TOGETHER WITH ITS OWNERS, MEMBERS, MANAGERS, OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS, EMPLOYEES, CONTRACTORS, INSURERS, SUCCESSORS, ASSIGNS AND LICENSORS FROM ANY CLAIMS, CAUSES OF ACTION, DISPUTES, CONTROVERSIES, LOSSES, COSTS, DAMAGES, EXPENSES, OR LIABILITIES, INCLUDING ATTORNEYS’ FEES, COURT COSTS, AND LITIGATION EXPENSES RELATED THERETO, ARISING OUT OF OR IN CONNECTION WITH THE customer’s USE of the SOFTWARE, DEFINITION FILES, FEATURES OR any CUSTOMER ACADEMIC PEACH PITS IN connection with, directly or indirectly, CUSTOMER’S ACTIONS OR OMISSIONS RESULTING IN INFRINGEMENT, NEGLIGENCE, TORTIOUS ACTION, VIOLATIONS OF LAW, VIOLATIONS OF THIS AGREEMENT, IMPROPER PURPOSES, OR HARM to third parties.
- COMPLIANCE WITH LICENSES. Customer hereby agrees that, no more than once every 12 months, the Company or its authorized representative shall, upon 10 days’ prior notice to Customer, and subject to an appropriate non-disclosure agreement and other reasonable safeguards to protect Customer’s Confidential Information, have the right to inspect and audit end-user records, systems and facilities to verify that use of any and all of the Software, Definition Files, or their respective updates and Features is in conformity with Customer’s then-valid Licenses. If verification discloses that use is not in conformity with the Customer’s then-valid License, the Customer shall be required to immediately obtain the necessary valid Licenses to bring its use into conformity and pay all applicable fees on a retroactive and going-forward basis through the remainder of the Term. The Parties agree that this right to conduct an inspection and audit may be performed by the Company or by a neutral third-party auditor, at the Company’s sole expense. In the event the audit reveals that Customer’s use is not in conformity with the Customer’s then-valid License, the costs of the neutral third-party auditor shall be reimbursed in full by Customer.
- EXPORT RESTRICTIONS. Use of the Software, Academic Peach Pits, or their respective updates and Features is subject to United States export laws and regulations. Customer must comply with all domestic and international export laws and regulations that apply. All rights of Customer are forfeited, and all Licenses granted herein are automatically revoked and terminated if Customer violates the terms of any applicable law or regulation or the terms of this Agreement.
- U.S. GOVERNMENT LICENSE RIGHTS. The Software, Definition Files, or their respective updates and Features were developed entirely at private expense, and are commercial computer software within the meaning of the applicable acquisition regulations. Pursuant to US FAR 48 CFR 12.212 and DFAR 48 CFR 227.7202, use, duplication and disclosure of the Software, Definition Files, or their respective updates and Features, together with any Customer Academic Peach Pits, by or for the U.S. Government or a U.S. Government subcontractor is subject solely to the terms and conditions set forth in this Agreement, except for provisions which are contrary to applicable mandatory federal laws.
- LIMITED CUSTOMER TRADEMARK LICENSE. Customer hereby grants to the Company a limited, nonexclusive, non-assignable, non-transferrable, non-sublicensable, royalty-free, fully-paid, worldwide license to use Customer’s regular trade names, trademarks, titles and logos (collectively, the “Licensed Marks”) on the Company’s website, portfolio, and in the advertising, promotion and sale of the Company’s various products and services, using the Licensed Marks only to identify that Customer is a valued client of the Company. The Company’s use of the Licensed Marks shall be in good taste, good faith, and shall be consistent with the Customer’s deliveries of specimens of the Licensed Marks, if any. Company shall not make or permit alteration, modification or improper use of the Licensed Marks. Company will not use Customer’s Licensed Marks to imply partnerships, joint ventures or in any way that might result in confusion as to the separate and distinct identities of Company and Customer. Customer shall have the right to inspect and correct Company’s use of the Licensed Marks to be consistent with the terms and conditions of this Agreement. The Company recognizes and acknowledges Customer’s ownership and title to the Licensed Marks and the goodwill related thereto and agrees that any goodwill which accrues because of Company’s use of such marks shall be and remains the property of Customer. Company further agrees not to contest or take any action in opposition to any trademark, servicemark, tradename or logo of Cusomter or to use, employ or attempt to register any mark or tradename which is substantially similar to any mark or name of Customer.
(a) Entire Agreement. This Agreement, together with the Customer Invoice, contains the final, complete and fully integrated agreement relating to its subject matter and supersedes all prior or contemporaneous agreements. These terms and conditions are subject to change by the Company from time to time in its sole discretion, and shall be deemed accepted upon use of the Software, Definition Files, or their respective updates and Features by Customer following electronic notice to Customer of such changes.
(b) Notices. Any notice required by or in connection with this Agreement shall be in writing and shall be given to the appropriate party by personal delivery, email, certified mail, postage prepaid, or recognized overnight delivery services to the contact provided in the Customer Invoice or at to email@example.com. If you have any questions about this Agreement , or if you want to contact the Company for any reason, please direct all correspondence to firstname.lastname@example.org. Each party agrees to keep current all contact information.
(c) Severabilty. If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, it shall first be modified to the minimum extent necessary to be enforceable under applicable law, and if not possible, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.
(d) Governing Law; Venue; Attorneys’ Fees. The parties shall attempt to promptly resolve through good faith negotiation any and all disputes arising out of or in connection with this Agreement or its performance, including, but not limited to, any questions regarding the existence, validity or termination hereof. This Agreement shall be governed in all respects by the laws of the state of Washington and the United States of America as such laws are applied to agreements entered into and to be performed entirely within the state of Washington without reference or regard to its conflicts of laws provisions. This Agreement is prepared and executed in the English language only and any translations of this Agreement to any other language shall have no effect. All proceedings related to these Terms will be conducted in the English language. In the event of any litigation or arbitration between the parties hereto arising out of this Agreement, the prevailing party shall be allowed all reasonable attorneys’ fees, court costs, arbitration fees and expenses incurred in such litigation or arbitration, including all such expenses incurred on appeal. All disputes arising under this Agreement or any arbitration shall be brought in the Superior Court of King County, Washington or the U.S. District Court for the Western District of Washington, and the parties consent to the exclusive jurisdiction of these courts.
(e) Assignment. Customer may not assign any rights under this Agreement without the prior written approval of the Company. The Company may assign this Agreement, including its rights and obligations hereunder, in whole or in part, by operation of law, or in the event of a merger, acquisition or similar transaction.
(f) Waiver. Failure or delay by either party to exercise or enforce any right conferred by this Agreement shall not be deemed to be a waiver of any such right. Further, a waiver, express or implied, by either party of any default by the other in the observance and performance of any of the conditions, covenants or duties set forth in this Agreement shall not constitute or be construed as a waiver of any subsequent or other default.
(g) Relationship of Parties. The relationship of the parties shall be that of independent licensor and licensee of software on an independent contractor basis, and nothing herein shall create any form of agency partnership, joint venture or other form of association.
(h) Survival. Upon termination of this Agreement for any reason, the provisions of Sections 1, 6, and 10 through 22 shall survive indefinitely.
(i) Authority; Enforceability. If the Customer is a corporation, limited liability company, partnership, joint venture, trust or other business entity, then the individual signing this Agreement, signifying acceptance or manifesting assent to these terms and conditions or otherwise accessing the Software or Definition Files (or any of their respective Features) represents and warrants that they have sufficient authority to bind the Customer to this Agreement, and Customer hereby agrees that this Agreement shall be legally binding and enforceable against Customer in accordance with its terms.