These General Terms and Conditions ("General Terms") between Tugboat Logic, Inc., a Delaware corporation, with offices at 433 Airport Blvd. Suite 304, Burlingame, CA USA (“Tugboat Logic”) and User are made as of the date User clicks the “Accept” button ("Effective Date").
If you register for a free trial of our services or for free services, then the applicable provisions of this agreement shall also govern your free trial for those free services.
The purpose of the General Terms is to create a single mechanism under which User may purchase Tugboat Logic Services. In addition to the General Terms, User’s purchase and use of Tugboat Logic Service shall also be subject to the applicable Tugboat Logic Order Form for each Tugboat Logic Service purchased by User in the form as mutually agreed by User and Tugboat Logic. In the event of any conflict between the General Terms, and Order Forms (as defined below), the order of precedence will be the following: these General Terms, and then the applicable Order Form(s); provided, however, in the event of any specific conflict between a Order Form and the General Terms, the Service Exhibit shall control solely with respect to the subject matter of that Service Exhibit.
BY CLICKING ON THE “ACCEPT” BUTTON USER AGREES THAT THIS AGREEMENT (AS DEFINED BELOW) IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF, AND SUPERSEDES ALL PROPOSALS OR PRIOR OR CONTEMPORANEOUS AGREEMENTS, ORAL OR WRITTEN, INCLUDING, BUT NOT LIMITED TO, ANY TERMS CONTAINED IN USER’S PURCHASE ORDER.
1.1 “Affiliate” means, with respect to a party, any entity which directly or indirectly controls, is controlled by, or is under common control with such party. "Control," for purposes of this definition, means ownership or control, directly or indirectly, of more than 50% of the voting interests of the subject entity.
1.2 "Agreement" means the General Terms, each User Agreement, each SOW (if any) and any other document executed by the parties.
1.3 “Confidential Information” has the meaning set forth in Section 3.
1.4 “Documentation” means the description of the Tugboat Logic Service(s) contained in the then current Tugboat Logic Service descriptions provided by Tugboat Logic to User upon purchase or license of the Tugboat Logic Service(s), and any user documentation or support knowledge database relating to the use of the Tugboat Logic Services that are provided on-line at the time of User’s purchase of the Tugboat Logic Service and delivered with the Tugboat Logic Service.
1.5 “Free Trial” means the evaluation term for a Tugboat Logic Service, usually for a two (2) or four (4) week period, as set by Tugboat Logic through the duration of valid access to the Tugboat Logic Service. Upon request by User, Tugboat Logic may extend the evaluation term at its sole discretion and an authorized representative shall notify User of any such extension to its valid access to the Tugboat Logic Service via email.
1.6 “Extension Term” means each additional one year subscription term for which the subscription term for a Tugboat Logic Service is extended pursuant to Section 7. 1.7 “Initial Term” means the initial subscription term for a Tugboat Logic Service that is defined on the applicable Order Form.
1.8 “Order Form” means an ordering document for a Tugboat Logic Service and may take the form of an invoice issued by Tugboat Logic or a purchase order issued by User or Reseller. Each Order Form shall reference this Agreement and these General Terms.
1.9 “Reseller” means a third-party authorized by Tugboat Logic to resell Tugboat Logic Services directly to User.
1.10 “Subscription Fees” mean the fees paid by User for the right to use the applicable subscription based Tugboat Logic Service for the given Initial Term or Extension Term, as applicable.
1.11 "Taxes" means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes.
1.12 “Term” means the Initial Term and any Extension Term applicable to each Invoice or Order Form.
1.13 "Tugboat Logic Service" means the subscription to a Software as a Service that is licensed by or purchased by a User, as delivered by Tugboat Logic, Inc. over the Internet under an Order Form.
1.14 “User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized to use the Tugboat Logic Service, or in the case of any Services provided without charge as a free trial, for whom a Tugboat Logic Service has been provisioned; or for whom a subscription has been purchased. Examples of a user may include: an employee, consultant, contractor or any third party for which business is transacted.
2.1 Subject to the terms of these General Terms and any applicable agreements, Tugboat Logic, Inc. grants to User and its Affiliates a royalty-free, non-exclusive, limited term, non-transferable (except to a successor in interest as permitted hereunder) license to use the Tugboat Logic Services purchased by User during the Term in accordance with the Documentation, in the quantities specified in the applicable Order Form, and solely for User’s own internal business purposes. User may use the Documentation in connection with the license granted hereunder.
2.2 As between User and Tugboat Logic Inc., User shall be responsible for all activities undertaken by User’s employees or agents in connection with their use of the Services, as well as for any failure on the part of its employees or agents to comply with any relevant law or regulation. User hereby agrees to indemnify and hold Tugboat Logic Inc., its officers, directors, employees and agents harmless from and against any damages, losses, liabilities, settlements and expenses (including without limitation reasonable attorneys’ fees) in connection with any claim or action that arises from the actions of User’s employees or agents in connection with their use of the Service . User specifically agrees to limit the use of the Tugboat Logic Services to those parameters set forth in the applicable Order Form. Without limiting the foregoing, User specifically agrees not to: (i) resell, sublicense, lease, time-share or otherwise make a Tugboat Logic Service (including the Documentation) available to any third party; (ii) attempt to gain unauthorized access to, or disrupt the integrity or performance of, a Tugboat Logic Service or the data contained therein; (iii) modify, copy or create derivative works based on a Tugboat Logic Service; (iv) decompile, disassemble, reverse engineer or otherwise attempt to derive source code from a Tugboat Logic Service, in whole or in part; (v) access a Tugboat Logic Service for the purpose of building a competitive Service or service or copying its features or user interface; (vi) use a Tugboat Logic Service, or permit it to be used, for purposes of: (a) Service evaluation, benchmarking or other comparative analysis intended for publication outside the User organization without Tugboat Logic's prior written consent; (b) infringement on the intellectual property rights of any third party or any rights of publicity or privacy; (c) violation of any law, statute, ordinance, or regulation (including, but not limited to, the laws and regulations governing export/import control, unfair competition, anti- discrimination, and/or false advertising); (d) propagation of any virus, worms, Trojan horses, or other programming routine intended to damage any system or data; and/or (e) filing copyright or patent applications that include the Software and/or Documentation or any portion thereof.
2.3 Free Trial. If a User registers on the Tugboat Logic website for a free trial, We will make one or more Services available to the User on a trial basis free of charge until the earlier of (a) the end of the free trial period for which the User registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by the User for such Service(s), or (c) termination by Tugboat Logic in its sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA ENTERED BY A USER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY A USER, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS THE USER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, OR PURCHASES APPLICABLE UPGRADED SERVICES BEFORE THE END OF THE TRIAL PERIOD.
NOTWITHSTANDING SECTIONS 9 (WARRANTIES, REMEDIES AND DISCLAIMERS) AND 10 (LIMITATION OF LIABILITY), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND TUGBOAT LOGIC, INC. SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD. WITHOUT LIMITING THE FOREGOING, TUGBOAT LOGIC AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO USER THAT: (A) USER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET THE USER’S REQUIREMENTS, (B) USER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 10 (LIMITATION OF LIABILITY), YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO TUGBOAT LOGIC AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF USER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY USER OF THIS AGREEMENT AND ANY OF USER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
3.1 As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party"), whether orally or in writing, that is designated as “confidential” or the like, or, that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in and Order Form), the Software, User Data, business and marketing plans, technology and technical information, Service designs, and business processes.
3.2 "Confidential Information" shall not include information that (i) is or becomes a matter of public knowledge through no act or omission of the Receiving Party; (ii) was in the Receiving Party’s lawful possession prior to the disclosure without restriction on disclosure; (iii) is lawfully disclosed to the Receiving Party by a third party that lawfully and rightfully possesses such information without restriction on disclosure; (iv) information that the Receiving Party can document resulted from its own research and development, independent of receipt of the disclosure from the Disclosing Party; or (v) is disclosed with the prior written approval of the Disclosing Party.
3.3 Receiving Party shall not (i) disclose any Confidential Information of the Disclosing Party to any third party, except as otherwise expressly permitted herein or (ii) use any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement or in any manner that would constitute a violation of any laws or regulations, including without limitation the export control laws of the United States, except with Disclosing Party's prior written consent. The Receiving Party shall not make Confidential Information available to any of its employees or consultants except those that have agreed to obligations of confidentiality at least as restrictive as those set forth herein and have a “need to know” such Confidential Information. The Receiving Party agrees to hold the Disclosing Party’s Confidential Information in confidence and to take all precautions to protect such Confidential Information as the Receiving Party employs with respect to its own Confidential Information of a like nature, but in no case shall the Receiving Party employ less than reasonable precautions. Receiving Party shall promptly notify Disclosing Party if it becomes aware of any actual or reasonably suspected breach of confidentiality of Disclosing Party's Confidential Information. This Agreement will not be construed to prohibit disclosure of Confidential Information to the extent that such disclosure is required to by law or valid order of a court or other governmental authority; provided, however, to the extent permitted by law, the responding party shall give prompt written notice to the other party to enable the other party to seek a protective order or otherwise prevent or restrict such disclosure and, if disclosed, the scope of such disclosure is limited to the extent possible.
The Receiving Party will return all copies of the Disclosing Party’s Confidential Information upon the earlier of (i) the Disclosing Party’s request, or (ii) the termination or expiration of this Agreement. Instead of returning such Confidential Information, the Receiving Party may destroy all copies of such Confidential Information in its possession; provided, however, the Receiving Party may retain copy of any Confidential Information disclosed to it solely for archival purposes, provided that such copy is retained in secure storage and held in the strictest confidence for so long as the Confidential Information remains in the possession of the Receiving Party. 3.4 The parties acknowledge and agree that the confidentiality obligations set forth in this Agreement are reasonable and necessary for the protection of the parties’ business interests, that irreparable injury may result if they are breached, and that in the event of any actual or potential breach of Section 3, that the non-breaching party may have no adequate remedy at law and shall be entitled to seek injunctive and/or other equitable relief as may be deemed proper by a court of competent jurisdiction.
4.1 As between the parties, Tugboat Logic retains all title, intellectual property and other ownership rights throughout the world in and to the Tugboat Logic Services, Documentation, any Service offering. Tugboat Logic hereby grants to User a non- exclusive, non-transferable, fully paid up, license to use the Service in accordance with this Agreement and solely for User’s internal business purposes. User retains all title, intellectual property and other ownership rights in all User Data, User Confidential Information and all data, text, files, output, programs, information, or other information and material that User provides, develops, or makes available or uses in conjunction with any Service offering.
4.2 User’s rights to use the Tugboat Logic Service (including any supporting documentation) shall be limited to those expressly granted in this Agreement and any applicable Service Exhibit or User Order Form or Invoice. User is not authorized to use (and shall not permit any third party to use) the Tugboat Logic Services (including the Documentation) or any portion thereof except as expressly authorized by this Agreement or the applicable Order Form. There are no implied rights and all other rights not expressly granted herein are reserved. No license, right or interest in any Tugboat Logic trademark, copyright, trade name or service mark is granted hereunder. User shall not remove from any full or partial copies made by User of the Service or Service Interface, any copyright or other proprietary notice contained in or on the original, as delivered to User within the Tugboat Logic Service.
4.3 Each party acknowledges that the Tugboat Logic Service contains valuable trade secrets and proprietary information of Tugboat Logic, that in the event of any actual or threatened breach of the scope of any of the licenses granted hereunder, such breach shall constitute immediate, irreparable harm to Tugboat Logic for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach in addition to whatever remedies Tugboat Logic might have at law or under this Agreement.
5.1 a) Initial Fees. Fees for the Tugboat Logic Service will be the Subscription Fees and other fees set forth in the Order Forms (collective, the “Fees”). No refunds will be made except as provided for under any warranties for the applicable Tugboat Logic Service. User will be liable for payment of all Taxes that are levied upon and related to the performance of obligations or exercise of rights under this Agreement. Tugboat Logic may be required to collect and remit Taxes from User, unless User provides Tugboat Logic with a valid tax exemption certificate. The amounts received by Tugboat Logic, after the provision for any Tax or withholding required by any country, will be equal to the amounts specified on the Order Form. In no event will either party be responsible for any taxes levied against the other party's net income.
b) Renewal Fees. Upon expiration of the Initial Term applicable to an Order Form, the subscription term will renew for an Extension Term in accordance with Section 7.4. The Fees stated in each Order Form shall be effective during the Initial Term specified in that Order Form and the Subscription Fees and other fees for each Extension Term shall be defined in the applicable Order Form, or in the absence of any such terms regarding Fees for Extension Terms, by mutual agreement of the parties.
5.2 Payment. Unless otherwise agreed between User or Reseller, all Fees due under an Order Form shall be due and payable to Tugboat Logic Inc. within thirty (30) days of receipt of invoice. Except as otherwise expressly permitted herein, all Fees owed pursuant to an Order Form are non-cancellable and non-refundable for the Term. Any payment not received from User by the due date may accrue (except for amounts then under reasonable and good faith dispute) interest at the rate of one and one half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. Tugboat Logic may decline to make any shipments of Tugboat Logic Services or provide Services, if in Tugboat Logic’s reasonable opinion, circumstances exist which raise doubt as to User’s ability or willingness to pay as provided herein. Failure to make timely payment may result in immediate termination of access to the Tugboat Logic Services. Upon default by User, Tugboat Logic will have all remedies available at law or in equity.
5.3 Reporting. User shall audit its actual usage of the subscription based Tugboat Logic Services and only use the Services in accordance with the allowed user or usage limits as set out in the Order Form. Any discrepancies must be reported to Tugboat Logic immediately.
6.1 Tugboat Logic shall provide support provided User is current in payment of the applicable Fees and any additional fees for premium support, if applicable. Tugboat Logic’s current support terms are described on Tugboat Logic’s website or applicable Order Form.
6.2 Tugboat Logic, or one of its Partners, may provide Professional Services, if any, specified in one or more SOWs. All Professional Services shall be billed as stated in the applicable SOW and User agrees that if User has not used the Professional Services within one (1) year of paying for such Professional Services, Tugboat Logic has no further obligations and User shall not be entitled to a refund except as set forth expressly in the applicable SOW. Tugboat Logic warrants it will provide Professional Services in a professional and workmanlike manner consistent with industry standards and practices. As User’s sole and exclusive remedy and Tugboat Logic’s entire liability for any breach of the foregoing warranty, Tugboat Logic will, (i) use reasonable efforts to provide a work around, or otherwise reperform the Professional Services or, if Tugboat Logic is unable to do so, (ii) terminate the applicable SOW and refund that portion of any Fees paid to Tugboat Logic or Reseller that correspond to the allegedly defective Professional Services.
7.1 Either party may terminate the General Terms or Service Exhibit or any Order Form (i) immediately upon written notice if the other party commits a non-remediable material breach; or (ii) if the other party fails to cure any remediable material breach within thirty (30) days of being of notified in writing of such breach, unless such breach is for non-payment and then within five (5) days of such notice.
7.2 Either party may terminate the General Terms and each Order Form immediately by written notice if (i) the only Term in effect is an Evaluation Term, or (ii) no Order Form is in effect.
7.3 On termination or expiration of the General Terms, all Software and Service licenses granted under all Order Forms shall automatically terminate with immediate effect, provided the license granted pursuant to Section 4.1 for User to use the Work Service for User’s internal business purposes shall remain in full force and effect.
7.4 Unless otherwise set forth in the applicable Service Exhibit or Order Form, the Initial Term applicable to each Order Form commences on the date User executes such Order Form and the Initial Term applicable to follow-on orders under such Order Form commences on the date Tugboat Logic receives such order. Upon expiration of the Initial Term under each Order Form the subscription term applicable to such Order Form shall automatically renew for Extension Terms unless otherwise agreed by the parties or either party gives the other notice of non-renewal at least ninety (90) days prior to the end of the relevant subscription term.
7.5 In the event of the termination or expiration of this Agreement, the provisions of this Agreement which by their nature extend beyond the expiration or termination of this Agreement, including but not limited to sections 2.2, “License Restrictions”; 3, “Confidentiality”; 4, “Ownership”; 5 “Fees, Payment and Reporting”; 7, “Termination and Expiration”; 10, “Limitation of Liability”; and 11, “General Provisions”, as well as any accrued rights to payment shall remain in effect beyond such termination or expiration until fulfilled.
Tugboat Logic will (i) defend and indemnify User against any suit or proceeding by a third party to the extent based on a rightful claim that the applicable Tugboat Logic Service(s) in the form created and provided by Tugboat Logic and sold to User pursuant to this Agreement (the “Indemnified Service(s)”) directly infringes any valid U.S. patent or U.S. copyright, or misappropriates any valid trade secret enforceable under the laws of the United States or a jurisdiction thereof, and (ii) pay any damages finally awarded in such suit or proceeding as a result of such claim (or pay any settlement of such claim), provided that User will promptly notify Tugboat Logic in writing of the third party claim, suit or proceeding (in any event, within thirty (30) days after User becomes aware or reasonably should have been aware of such claim); authorizes and allows Tugboat Logic to have sole control of the defense and/or settlement of the claim; and provides any information, assistance and other cooperation reasonably requested by Tugboat Logic in connection with the claim, suit or proceeding. In the event of a claim relating to an Indemnified Service, Tugboat Logic will, at its sole option and expense: (a) procure for User the right to use the Indemnified Services under the terms of this Agreement; (b) replace or modify the Indemnified Services to be (or to make it more likely to be) non-infringing; or (c) if the foregoing options are not reasonably practicable, then Tugboat Logic may terminate User’s rights to use Indemnified Services and refund all amounts paid by User to Tugboat Logic attributable to Users’ future usage or access to the Indemnified Services hereunder. Tugboat Logic shall have no liability for, and the aforementioned Tugboat Logic obligations shall not apply to any claim based on or relating to (1) the use of the Indemnified Services in combination with any other Service, service or device, if such infringement claim would have been avoided by the use of the Indemnified Services without such other Service, service or device; (2) any modification or adaptation to the Indemnified Services; (3) use of an Indemnified Services other than as expressly authorized pursuant to this Agreement or pursuant to applicable Tugboat Logic Documentation; (4) use of the Indemnified Services by User after Tugboat Logic has made available to User a modified version or replacement for the Indemnified Services or has provided notice to User that a claim of infringement has been or may be made with respect to the Indemnified Service; or (5) specifications, instructions, features, functions or designs or other elements provided by or requested by User. The foregoing is the sole and exclusive remedy of User and the entire liability of Tugboat Logic with respect to any infringement or claim of infringement of any third party intellectual property right.
9.1 Each party represents and warrants that (i) it has the legal power to enter into and perform under this Agreement; and (ii) it shall comply with all other applicable laws in its performance hereunder.
9.2 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE AND IN EACH SERVICE EXHIBIT, TUGBOAT LOGIC AND TUGBOAT LOGIC LICENSORS DISCLAIM ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON INFRINGEMENT, INCLUDING WITHOUT LIMITATION ANY CONTENT, GUIDANCE OR RECOMMENDATIONS PROVIDED TO USERS WITHIN THE TUGBOAT LOGIC SERVICES AND NONINFRINGEMENT. TUGBOAT LOGIC EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT USER’S USE OF THE SERVICE WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS. USER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICE, GUIDANCE, RECOMMENDATIONS, REPORTS OR THE INFORMATION GENERATED BY THE SERVICE IS ACCURATE OR SUFFICIENT FOR USER’S PURPOSES.TUGBOAT LOGIC DOES NOT WARRANT THE OPERATION OF THE TUGBOAT LOGIC SERVICES WILL BE UNINTERRUPTED OR ERROR- FREE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THE AGREEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS SO THE FOREGOING LIMITATIONS MAY NOT APPLY TO USER.
10.1 EXCEPT FOR (I) THE PARTIES’ INDEMNIFICATION OBLIGATIONS; (II) DAMAGES RESULTING FROM EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (III) DAMAGES RESULTING FROM EITHER PARTY’S MATERIAL BREACH OF SECTION 3 (CONFIDENTIALITY); (IV) USER’S BREACH OF SECTIONS 2 OR 4.1 (LICENSE TERMS), OR (V) USER’S PAYMENT OBLIGATIONS, EACH PARTY’S LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED (i) WITH RESPECT TO AN INITIAL OR RENEWAL TERM, THE APPLICABLE TUGBOAT LOGIC SERVICE SUBSCRIPTION FEES (AS DEFINED), OR (ii) WITH RESPECT TO AN EVALUATION TERM, $25,000.
10.2 EXCEPT FOR (i) DAMAGES RESULTING FROM EITHER PARTY’S MATERIAL BREACH OF SECTION 3 (CONFIDENTIALITY) OR (ii) USER’S BREACH OF SECTIONS 2 OR 4.1 (LICENSE TERMS), IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS OR SUPPLIERS HAVE ANY LIABILITY TO THE OTHER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.10.3 ESSENTIAL PURPOSE. THE LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES STATED HEREIN WILL APPLY REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. BOTH PARTIES HEREUNDER SPECIFICALLY ACKNOWLEDGE THAT THESE LIMITATIONS OF LIABILITY ARE REFLECTED IN THE PRICING.
11.1 Government End-User Notice. This Section shall apply only if User is a federal government entity. Tugboat Logic provides the Tugboat Logic Services, including related technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Software include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If greater rights are needed, a mutually acceptable written addendum specifically conveying such rights must be included in this Agreement.
11.2 Publicity. Neither party may issue press releases or otherwise publicize the parties’ relationship without the other party’s prior consent, which shall not be unreasonably withheld.
11.3 Independent Contractors; Relationship with Third Parties. The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created hereby. There are no third party beneficiaries to this Agreement.
11.4 Notices. All notices shall be in writing to each party’s address on the signature page of this Agreement and effective upon receipt.
11.5 Entire Agreement; Integration. This Agreement constitutes the entire agreement of the parties and supersedes all prior or contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, any Order Form issued by User or Reseller shall be deemed a convenient order and payment device only and no terms stated in any Order Form or in any other order document shall be incorporated into this Agreement, and all such terms shall be void and of no effect.
11.6 Waiver. No failure or delay in exercising any right hereunder shall constitute a waiver of such right. Except as otherwise provided, remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in effect. The parties’ rights and remedies under this Agreement are cumulative.
11.7 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) due to circumstances beyond such party's reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such party's employees), service disruptions involving hardware, software or power systems not within such party's possession or reasonable control, and denial of service attacks.
11.8 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Service Exhibits hereunder), without consent of the other party, to its successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity not involving a direct competitor of the other party.
11.9 Export Restrictions. Each party agrees to comply with all applicable regulations of the United States Department of Commerce and with the United States Export Administration Act, as amended from time to time, and with all applicable laws and regulations of other jurisdictions with respect to the importation and use of the Tugboat Logic Services and Tugboat Logic Confidential Information and any media, to assure that the Tugboat Logic Services, Tugboat Logic Confidential Information and media are not exported, imported or used in violation of law or applicable regulation.
11.10 Applicable Law. This Agreement will be governed by the laws of the State of California and the United States of America, without regard to conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. The parties hereby consent to the exclusive jurisdiction of the state and federal courts located in Santa Clara, County, California, for resolution of any disputes arising out of this Agreement.
11.11 Counterparts. Any subsequent Service Exhibit incorporated into this Agreement may be executed by facsimile and in counterparts.
11.12 Headings; Language. All headings used herein are for convenience of reference only and will not in any way affect the interpretation hereof. The English language version of this Agreement controls. It is the express wish of both parties that this Agreement, and any associated documentation, be written and signed in English.