End User License Agreement
Updated: November 2022
PLEASE READ THIS END USER LICENSE AGREEMENT (“AGREEMENT”) BEFORE INSTALLING, CONFIGURING, ACCESSING, AND/OR USING THE NTOPOLOGY, INC. (“NTOPOLOGY”) SOFTWARE (“SOFTWARE”); THE RELATED SOFTWARE-AS-A-SERVICE OFFERINGS (THE “SAAS OFFERINGS”); OR ANY OTHER ADD-ONS OR SERVICES, IN EACH CASE ORDERED BY CUSTOMER (COLLECTIVELY, THE “SERVICES”). BY CLICKING “I AGREE” OR INSTALLING, CONFIGURING, ACCESSING AND/OR USING THE SERVICES IN ANY WAY, BY ENTERING INTO OR PAYING FOR THE SERVICES PURSUANT TO AN NTOPOLOGY ORDER FORM (“ORDER FORM”), OR BY COMPLETING AN NTOPOLOGY LICENSE APPLICATION, YOU AGREE TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THE ENTITY OR INDIVIDUAL IDENTIFIED AS THE CUSTOMER IN THE ORDER FORM (“CUSTOMER”) TO THIS AGREEMENT AND ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY THE TERMS OF AND BECOME A PARTY TO THIS AGREEMENT WITH NTOPOLOGY. NTOPOLOGY DOES NOT AGREE TO ANY OTHER TERMS, INCLUDING WITHOUT LIMITATION ANY TERMS ON CUSTOMER’S PURCHASE ORDER.
1. Definitions. Capitalized terms will have the meanings set forth in this Section 1, or in the section where they are first used.
1.1 “Authorized User” means each of Customer’s employees, agents, and independent contractors who are authorized to access the Services pursuant to Customer’s rights under this Agreement.
1.2 “Administrator” means the person who is authorized by Customer via certain functionalities of the Services to administer the Authorized Users’ accounts on Customer’s behalf. The Administrator may also be (but not required) an Authorized User.
1.3 “Customer Data” means all data, information, and other content imported to the Services or otherwise provided to nTopology or its contractors by or for Customer in connection with Customer’s use of the Services. Customer Data excludes Usage Data.
1.4 “Device” means any Authorized User’s device (e.g., desktop computer or laptop) that accesses, or is authorized to access, the Services.
1.5 “Unauthorized Devices” means: (a) any computing program, device, or architecture that permits multiple users to access the Software through a single download or log-in, including but not limited to, servers and distributed computing systems; and (b) any Device other than the Active Session Device(s).
1.6 “Usage Data” means any and all data collected or generated by nTopology in connection with the Services (including, without limitation, Device information, crash reports, Administrator settings and permissions, and how Authorized Users use the Services). Usage Data does not include usernames or passwords, which are part of Customer Data.
1.7 “Effective Date” means the earlier of (a) when Customer accepts the terms of this Agreement as described in the preamble and (b) effective date as set forth in the applicable Order Form.
2.1 License. Customer may use the Services ordered by Customer (as reflected in an Order Form) solely for Customer’s internal business purposes. Subject to the terms of this Agreement, and the applicable Order Form, nTopology hereby grants Customer, during the Term (as defined below), a non-exclusive, non-sublicensable, non-transferable license to: (i) install and internally reproduce the Software described in the Order Form; and (ii) access and use the SaaS Offerings described in the Order Form, in each case (a) subject to the number of Authorized Users or other usage restrictions set forth in this Agreement the applicable Order Form and (b) in accordance with the documentation made available by nTopology (“Documentation”). Any future release, update, or other addition to the functionality of the Services made available by nTopology to Customer, will be subject to these terms and conditions of this Agreement, unless nTopology expressly states otherwise.
2.2 Restrictions. Customer will not (and will not permit any user or any other third party to): (i) copy (except for normal installation needs and a reasonable number of copies of the Software (for backup purposes) and Documentation), modify, make derivative works of, reverse engineer, disassemble, decompile, or otherwise attempt to discover the source code for the Services; (ii) rent, lease, sublicense, sell, assign, transfer, or otherwise make available the Services (or any related Documentation) to any third party; (iii) use or access the Services for the purpose of designing, modifying, or otherwise creating any product or service, which performs functions similar to the functions performed by the Services; (iv) use the Services in excess of the number of Authorized Users, concurrent sessions or other usage restrictions set forth in this Agreement or the applicable Order Form; (v) share Devices to access the Services by multiple users; (vi) share Access Protocols (defined below) between Authorized Users or with any third party; (viii) download, use, or access the Software on any Unauthorized Device unless otherwise set forth in the applicable Order Form; (ix) publish or disclose to any third party any evaluation, performance or benchmark tests or analyses, the results of audits or ethical hacks, or any other non-public information relating to the Services or the use thereof, except as may be expressly authorized by nTopology in writing; or (x) remove or alter any trademark, logo, copyright, or other proprietary notices, legends, symbols, or labels in the Services or Documentation (or any copies thereof). Any command line functionality within the Software made available to Customer by nTopology may only be used for Customer’s internal use and only on an individual basis unless otherwise set forth in the applicable Order Form.
2.3 Active Session Devices. For purposes of named licenses granted hereunder, each Authorized User may only use and access the Services through a maximum of three (3) Devices during the License Term (each an “Active Session Device”) and may only use and access the Services through one Active Session Device at any one time. If an Authorized User wishes to transfer access rights in the Services from one Active Session Device to a different Device at any time during the License Term, the Authorized User will notify its Administrator and will need to discontinue use of the Services on one of its other three (3) Active Session Devices prior to being authorized to use the new Device. For purposes of floating licenses granted hereunder, each Authorized User may only use and access the Services through a maximum of three (3) Devices used concurrently at any given time. For avoidance of doubt, any use of the Services on a Device other than an Active Session Device, or any use of the Services by a single Authorized User on multiple Active Session Devices simultaneously, shall constitute a breach of this Agreement. Use of the Services on additional Devices exceeding the number set forth herein and in the applicable Order Form may be subject to additional fees.
2.4 Terms Applicable to Parasolid Designer. The following are required flow-down terms applicable to the Parasolid Designer included within the Software (“Parasolid Add-On”):
(1) Customer may use the Parasolid Add-On in the Territory to process only data associated with Customer’s own business, including providing professional services for Customer’s customers, but only while embedded within the Software. “Territory” means the entire world unless the installation, access and use of the Parasolid Add-On has otherwise been denied in any country.
(2) Customer hereby acknowledges Siemens’s proprietary rights and trade secrets contained in portions of the Software. As used herein, “Siemens” means Siemens Product Lifecycle Management Software Inc.
(3) This Agreement is subject to all United States and United Kingdom government laws and regulations as may be enacted, amended or modified from time to time regarding the export from the United States and United Kingdom of Siemens software, services, technology, or any derivatives thereof. Customer will not export or re-export any Siemens software, services, technology, or any derivatives thereof or permit the shipment of same without, if necessary, obtaining at Customer’s expense any required prior authorization from the United States Department of Commerce or other applicable authority as may be required by law. The provisions of this Article will survive the expiration or termination of this Agreement for any reason. Customer will reasonably cooperate with nTopology and will provide to nTopology promptly upon request any end-user certificates, affidavits regarding re-export or other certificates or documents as are reasonably requested to obtain approvals, consents, licenses or permits required for any payment or any export or import of products or services under this Agreement.
3. Access and Use of SaaS Offerings. As set forth in the Order Form, or as soon as reasonably practicable after the Effective Date, nTopology will provide to Customer the necessary passwords, access protocols, or other relevant procedures (the “Access Protocols”) to allow Customer to access the SaaS Offerings. Customer will safeguard and ensure that all Authorized Users and Administrator(s) safeguard the Access Protocols. Administrator(s) will be responsible for the creation and management of accounts for each Authorized User. Customer (and Authorized Users and Administrator(s)) are solely responsible for maintaining the confidentiality of all account usernames and passwords. Customer will not (and will ensure its Authorized Users and Administrator(s) do not) allow a third party to use its or their account, usernames, or passwords at any time, except as expressly permitted under this Agreement. Customer will notify nTopology promptly of any actual or reasonably suspected unauthorized use of its account, usernames, or passwords, or any other breach or suspected breach of this Agreement of which it becomes aware. nTopology reserves the right to terminate or suspend any username that nTopology reasonably determines may have been used by an unauthorized third party or an individual or entity other than the Authorized User to whom such username and password was originally assigned.
3.1 Delivery, Acceptance, and Installation of Software. Following the provision of the Access Protocols to Customer by nTopology, Customer may use the Access Protocols provided to Customer to create an account and/or otherwise log into the SaaS Offerings, where Customer can download the Software. Customer is responsible for installing the Software in accordance with the Documentation and any installation instructions provided by nTopology. Delivery will be deemed complete upon the delivery of the Access Protocols to Customer (“Software Delivery Date”).
3.2 Promotional Licenses. nTopology may, at nTopology’s discretion, offer free trials, demo licenses, promotional licenses, and licenses for Funded Research for certain customers (collectively, “Promotional Licenses”). “Funded Research” means any research or educational project that is sponsored, co-sponsored, hosted or supported, either through donations, grants, or otherwise, by a non-educational institution. Any use of the Services during such Promotional Licenses is subject to this Agreement, provided, however, that Sections 8 (Limited Warranties) and 10 (Indemnification) of this Agreement will not apply to Customer’s access to or use of the Services pursuant to a Promotional License. In addition, nTopology will provide only limited customer support to Customers that access or use the Services pursuant to a Promotional License. nTopology may terminate any such Promotional License at any time for any reason, in its sole discretion.
3.3 Educational Licenses. nTopology may, at nTopology’s discretion, offer certain customers free subscriptions to the Services for unfunded educational purposes (each an “Educational License”). Any access to or use of the Services via an Educational License is subject to this Agreement, provided, however, that (i) Sections 8 (Limited Warranties) and 10 (Indemnification) of this Agreement will not apply to Customer’s access to or use of the Services is pursuant an Educational License, and (ii) notwithstanding anything contrary in this Agreement, the following additional restrictions will apply with respect to Education Licenses: Customer (a) must be currently affiliated with an educational institution (i.e. a current student or faculty member); (b) may only use the Service for Customer’s personal educational purposes; and (c) must immediately stop using the Services if Customer becomes unaffiliated with an educational institution for any reason (e.g. student graduates) or if the project for which Customer is using the Educational License becomes Funded Research. In addition, nTopology will not provide any customer support to Customers with an Educational License. In addition to nTopology’s termination and suspension rights pursuant to Section 5.2 and 5.3 of this Agreement, nTopology may terminate any such Educational License at any time for any reason, in its sole discretion, including if Customer breaches any of the license restrictions in Section 2.2 of this Agreement.
3.4 Preview Mode Licenses. nTopology may, at nTopology’s discretion, offer certain customers preview mode access to the Services (“Preview Mode License”). Any use of the Services during such Preview Mode License is subject to this Agreement, provided, however, that Sections 8 (Limited Warranties) and 10 (Indemnification) of this Agreement will not apply to Customer’s Preview Mode License. In addition, (a) nTopology will provide only limited customer support in connection with Customer’s Preview Mode License, and (b) the features and functionality of the Services will be limited during any such Preview Mode License. nTopology may terminate any such Preview Mode License at any time for any reason, in its sole discretion.
3.5 Administrators. Customer will designate an Administrator who is responsible for managing via the SaaS Offering Authorized Users’ use of and access to the Services, including by assigning and re-assigning Authorized User licenses, in each case, subject to the restrictions set forth in the applicable Order Form (each a “Re-assignment”). Customer authorizes nTopology to rely upon communications from Administrator with respect to the Services, including, but not limited to, Re-assignment and managing Active Session Devices. nTopology may, but is not obligated to, confirm any instructions received from an Administrator against nTopology’s internal processes and/or with Customer, prior to taking action based on instructions from an Administrator. nTopology will have no liability to Customer or any other person for any actions nTopology takes in reasonable reliance on communications received from an Administrator. nTopology may also disclose Customer Data and Usage Data to the Administrator. Customer is responsible for all acts and omissions of its Administrator(s). Customer represents and warrants that the Administrator has the requisite authorization from Customer to enable nTopology to rely upon communications from the Administrator with respect to the Services and Customer.
4. Intellectual Property Rights
4.1 Ownership. Customer acknowledges that nTopology and its suppliers exclusively own and retain all rights, title, and interest in and to the Services. Other than as expressly set forth in this Agreement, no license or other rights in the Services are granted to Customer.
4.2 Customer Data. Customer exclusively owns and retains all rights, title, and interest in and to the Customer Data. Customer will have the sole responsibility for all Customer Data and Customer will obtain all licenses, consents and permissions needed for nTopology to use the Customer Data as permitted in this Agreement. Customer hereby grants to nTopology and its authorized representatives and contractors a non-exclusive right and license to use, process, store, and transmit, and disclose Customer Data solely to provide the Services to Customer and fulfill other obligations described in this Agreement.
4.3 Usage Data. Customer acknowledges and agrees that nTopology and its authorized representatives and contractors may (i) collect and use Usage Data in connection with providing the Services, (ii) internally use Usage Data to improve and analyze nTopology’s products and services, and (iii) disclose Usage Data that is aggregated and/or anonymized such that it does not include any identifying information of, or reasonably permit the identification of, Customer or any individual (including any Authorized User or Administrator).
4.4 Personal Data. In the course of performing the Services for Customer, nTopology may receive and store information that can be used to uniquely identify, contact or locate a natural person, including but not limited to name, address, email address, or phone number (“Personal Data”). nTopology will safeguard the confidentiality of Personal Data in accordance with applicable data privacy laws and will not access or use such Personal Data other than as necessary to perform the Services. nTopology receives and stores Personal Data solely as an agent acting on behalf of Customer.
4.5 Third Party Software. The Services may utilize, contain, or otherwise use certain third-party software (collectively, the “Third Party Software”). Third Party Software may be subject to additional licensing terms, which nTopology may deliver or make available from time to time to Customer, which are incorporated herein by reference, and which supersede any contradictory terms in this Agreement.
4.6 Feedback. Customer hereby grants to nTopology a royalty-free, worldwide, transferable, sub licensable, irrevocable, perpetual license to use or incorporate into nTopology’s products and services any suggestions, enhancement requests, recommendations or other feedback provided by Customer (or its Authorized Users or Administrator(s)), relating to the Services. nTopology shall not identify Customer as the source of any such feedback.
5. Term and Termination
5.1 Term. With respect to any paid licenses to the Services, this Agreement will commence on the Effective Date and continue for the duration of the License Term (defined below). Subject to any earlier termination as provided herein, and unless otherwise set forth on the applicable Order Form, the initial license term will commence on the earlier of (i) the Software Delivery Date and (ii) the license effective date set forth in the applicable Order Form, and will continue for the initial license term set forth on the applicable Order Form (but if no such initial term is included, then for a period of one (1) year) (“Initial License Term”). After the Initial License Term, subject to any earlier termination as provided herein, and unless otherwise set forth on the applicable Order Form, the license term will automatically renew for successive terms of the same duration as the Initial License Term, unless either party provides written notice of its desire not to renew at least thirty (30) days prior to the expiration of the then-current term (the Initial License Term, together with any renewal terms, collectively, the “License Term”). With respect to Promotional and Educational Licenses, such licenses will automatically expire at the end of the set term for such Promotional and Educational Licenses, unless earlier terminated as provided herein. With respect to Preview Mode Licenses, such licenses will continue until terminated as provided herein.
5.2 Termination. Either party may terminate this Agreement upon written notice if the other party is in material breach of this Agreement and such breach remains uncured for thirty (30) days following the breaching party’s receipt of written notice of such breach. In addition, with respect to Promotional, Educational, and Preview Mode Licenses, (a) Customer may terminate any such licenses at any time by closing Customer’s account upon notice to nTopology, and (b) nTopology may terminate any such license pursuant to Section 3. For the avoidance of doubt, the term “material” for the purposes of this section 5.2 shall include, but is not limited to, Customer’s (and its Authorized Users’ and Administrator(s)’) accessing the Services in a manner inconsistent with the terms of an applicable Purchase Order or otherwise violating this Agreement generally.
5.3 Suspension. Without limiting nTopology’s termination rights herein, nTopology reserves the right, at any time, with or without notice to Customer, to temporarily suspend Customer’s (and its Authorized Users’ and Administrator(s)’) access to or use of the Services or convert Customer to a Preview Mode License, without incurring obligation or liability, for (i) scheduled maintenance; (ii) purposes of maintaining the security and/or integrity of nTopology’s network, hardware, or associated systems or those of nTopology’s third party providers; or (iii) the actual or suspected violation of this Agreement by Customer (or any of its Authorized Users or Administrator(s)). nTopology will use reasonable efforts to notify Customer of any scheduled maintenance.
5.4 Effect of Termination. Upon termination or expiration of the License Term or any Promotional or Educational License, nTopology may, in its sole discretion, convert Customer to a Preview Mode License and this Agreement will continue for the duration of any such Preview Mode License. Upon termination or expiration of this Agreement (a) all rights and licenses granted hereunder will cease, (b) access to the SaaS Services will immediately terminate, and (c) Customer will promptly discontinue all use of the Services. Upon termination or expiration of this Agreement, Customer must immediately destroy any locally installed Software and all Documentation and all copies thereof (including copies stored in computer memory) and will, upon nTopology’s request, certify in writing the complete destruction of all copies of the Software and Documentation.
5.5 Survival. In addition to obligations that accrued during the Term, the provisions of Sections 1, 2.2, 2.4, 4, 5.4, 5.5, and 6 through 11 of this Agreement will survive the expiration or termination of this Agreement for any reason.
6. Fees and Payment
6.1 Fees. In consideration for the Services under this Agreement, Customer will pay to nTopology, all fees set forth in the applicable Order Form in accordance with the payment terms set forth therein, such fees and payment terms can be changed by nTopology upon written notice to Customer at least ten (10) days prior to the next billing period. Any changes will be effective beginning on the next billing period. Unless otherwise stated, all fees will be due in advance, are non-refundable, and will be paid in U.S. dollars. nTopology reserves the right (in addition to any other rights or remedies nTopology may have) to discontinue and/or suspend Customer’s (and its Authorized Users’ and Administrator(s)’) access to the Services if any fees are overdue until such amounts are paid in full. nTopology also reserves the right to charge Customer additional fees if Customer exceeds the number of Authorized Users or other usage restrictions set forth in this Agreement or the applicable Order Form.
6.2 Taxes. The fees are exclusive of, and Customer will pay, all sales, use, excise and other taxes and applicable export and import fees, customs duties and similar charges that may be levied upon Customer in connection with this Agreement, except for employment taxes for nTopology’s employees and taxes based on nTopology’s net income.
6.3 Interest. Any amounts not paid when due will bear interest at the rate of one and one-half percent (1.5%) per month, or the maximum legal rate if less.
7. Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in writing, related to the operations of the Disclosing Party or a third party that has been identified as confidential or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or that by the nature of the circumstances surrounding disclosure should have reasonably known is the confidential or proprietary information of the Disclosing Party. The Receiving Party will not use, reproduce, or disclose any Confidential Information except as expressly authorized by this Agreement, and will protect the Disclosing Party’s Confidential Information from dissemination using the same degree of care that it uses with respect to its own Confidential Information, but in no event with safeguards less than a reasonably prudent business would exercise under similar circumstances. The Receiving Party may disclose Confidential Information to its affiliates, employees, and representatives as on a need-to-know basis to perform its obligations or exercise its rights under this Agreement and will causes such affiliates, employees, and representatives to be bound by confidentiality obligations no less extensive that those set out in this Section 7. The Receiving Party will take prompt and appropriate action to prevent unauthorized use or disclosure of the Disclosing Party’s Confidential Information. Information will not be deemed to be Confidential Information if it (i) is already known by the Receiving Party without obligation of confidentiality; (ii) is independently developed by the Receiving Party without access or reference to the Disclosing Party’s Confidential Information; (iii) is already publicly known or becomes publicly known without breach of this Agreement or other substantively equivalent agreement; (iv) is lawfully received from a third party without obligation of confidentiality; or (v) is approved for release or disclosure by the Disclosing Party without restriction in writing. The Receiving Party may disclose Confidential Information to the limited extent required (a) to comply with a court order or other governmental body, or as otherwise necessary to comply with applicable law, provided the Receiving Party first give notice to the Disclosing Party and make a reasonable effort to obtain a protective order; or (b) establish the Disclosing Party’s rights under this Agreement, including to make such court filings as it may be required to do.
8. Limited Warranties
8.1 Software Warranty. nTopology warrants to Customer that the Software, when used in accordance with this Agreement and the Documentation, will substantially conform to the Documentation for ninety (90) days following the Software Delivery Date to Customer (“Software Warranty Period”). nTopology will use commercially reasonable efforts to correct any such non-conformity of which Customer notifies nTopology during the Software Warranty Period. If nTopology is unable or unwilling to correct any such non-conformity within a reasonable time after Customer’s notice, Customer may terminate this Agreement and receive a refund for any pre-paid, but unused amounts relating to such Software. This Section 8.1 sets forth the sole and exclusive remedy for breach of this warranty. This warranty does not cover defects resulting from (i) use of Software other than in accordance with this Agreement and the Documentation; (ii) any modifications made to the Software that are not made by nTopology or authorized by nTopology in writing; or (iii) any use of the Services in combination with other products, devices, equipment, software, or data not supplied by nTopology or approved in writing by nTopology.
8.2 SaaS Offerings Warranty. nTopology warrants to Customer that the SaaS Offerings, when used in accordance with this Agreement and the Documentation, will substantially conform to the Documentation. Provided that Customer notifies nTopology in writing of any breach of the foregoing warranty, nTopology shall, as Customer’s sole and exclusive remedy, use commercially reasonable efforts to correct any such non-conformity.
8.3 Disclaimers. THE LIMITED WARRANTIES IN SECTION 8 ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NTOPOLOGY HEREBY DISCLAIMS ALL OTHER WARRANTIES RELATING TO THE SERVICES INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND/OR DATA ACCURACY. NTOPOLOGY DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL ERRORS WILL BE CORRECTED. CUSTOMER ACKNOWLEDGES AND AGREES THAT NO SECURITY SOFTWARE CAN BE GUARANTEED TO BE PERFECTLY SECURE AND THAT INSECURITIES OR VULNERABILITIES MAY ARISE IN THE SERVICES. EXCEPT AS EXPRESSLY STATED IN SECTION 8, NTOPOLOGY AND ITS AFFILIATES AND LICENSORS PROVIDE THE SERVICES, AND DOCUMENTATION “AS IS”, “AS AVAILABLE,” AND WITH ALL FAULTS. CUSTOMER ACKNOWLEDGES CERTAIN ASPECTS OF THE SAAS OFFERINGS ARE IN A BETA STATE AND HAVE NOT BEEN FULLY TESTED AND MAY CONTAIN ERRORS. ANY BETA PORTION OF THE SAAS OFFERINGS IS PROVIDED “AS-IS”, AND NTOPOLOGY RESERVES THE RIGHT TO MODIFY AND CHANGE SUCH PORTION OF THE SAAS OFFERINGS AT ANY TIME.
9. Limitation on Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CUSTOMER AGREES THAT NEITHER NTOPOLOGY NOR SUPPLIERS OR LICENSORS WILL BE RESPONSIBLE FOR ANY LOSS OR DAMAGE TO CUSTOMER OR THIRD PARTIES CAUSED BY FAILURE OF THE SERVICES TO FUNCTION OR FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY. IN NO EVENT WILL NTOPOLOGY (OR ITS SUPPLIERS OR LICENSORS) BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, IN CONNECTION WITH THE USE OF THE SERVICES OR OTHER MATERIALS PROVIDED ALONG WITH THE SERVICES, OR IN CONNECTION WITH ANY OTHER CLAIM ARISING FROM THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NTOPOLOGY’S (AND ITS SUPPLIERS’ AND LICENSORS’) AGGREGATE CUMULATIVE LIABILITY UNDER OR RELATING TO THIS AGREEMENT, UNDER ANY CAUSE OF ACTION, WHETHER IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE GREATER OF (A) THE AMOUNT PAID BY CUSTOMER TO NTOPOLOGY FOR THE SERVICES DURING THE ONE (1) YEAR PRIOR TO THE ACT, OMISSION, OR OCCURRENCE GIVING RISE TO SUCH CLAIM, AND (B) FIFTY DOLLARS ($50). IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN WILL REMAIN IN EFFECT.
10. Indemnification. nTopology will defend at its expense any action brought against Customer by a third party to the extent that the action is based upon a claim that the Services infringes such third party’s intellectual property rights (a “Claim”). nTopology will pay those costs and damages finally awarded against Customer that are specifically attributable to a Claim or those costs and damages agreed to in a monetary settlement of the Claim. If the Services become, or in nTopology’s opinion are likely to become, the subject of a Claim, nTopology may, at its option and expense, either (i) procure for Customer the right to continue using the Services; (ii) replace or modify the Services so that they become non-infringing and remain functionally equivalent; or (iii) terminate this Agreement and refund to Customer any pre-paid, but unused amounts and, upon such termination, Customer will immediately cease all use of the Services and Documentation. Notwithstanding the foregoing, nTopology will have no obligation under this Section 10 or otherwise with respect to any Claim based upon (a) any use of the Services other than in accordance with the Documentation and this Agreement; (b) any use of the Services in combination with other products, devices, equipment, software, or data not supplied by nTopology or approved in writing by nTopology if such infringement would not have arisen but for such combination; (c) any use of any release of the Services other than the most current release made available to Customer; or (d) any modification of the Services not made by nTopology or authorized by nTopology in writing. This Section 10 states nTopology’s entire liability and Customer’s sole and exclusive remedy for Claims. The foregoing obligations are conditioned on Customer notifying nTopology promptly in writing of such Claim, giving nTopology sole control of the defense thereof and any related settlement negotiations, and cooperating and, at nTopology’s reasonable request and expense, assisting in such defense.
11. General Provisions.
11.1 Audit Rights. During the Term and for two (2) years thereafter, nTopology will have the right, during normal business hours and upon at least ten (10) days prior notice, to have an independent audit firm selected by nTopology inspect Customer’s facilities and audit Customer’s records relating to Customer’s activities pursuant to this Agreement and its use of the Services. Such audits will be undertaken to determine whether Customer has paid to nTopology the correct amounts owed under this Agreement and has otherwise complied with the terms of this Agreement, including without limitation all use restrictions in Section 2.3 and in the Order Form. The audit will be conducted at nTopology’s expense. Customer will promptly pay to nTopology any amounts shown by any such audit to be owing. Such audits will be conducted no more than once in any period of twelve (12) consecutive months. Any confidential or proprietary information of Customer disclosed to nTopology or the independent accounting firm in the course of the audit will be subject to confidentiality obligations or duties reasonably consistent with this Agreement’s confidentiality obligations as set forth in Section 7.
11.2 Governing Law and Venue. This Agreement, together with its Purchase Orders, schedules and exhibits, shall be governed by and construed in accordance with the internal laws of the state of New York, U.S.A., without regard to any provision of law that would require or permit the application of law of any other jurisdiction or to the United Nations Convention on the International Sale of Goods. Any action or proceeding arising from or relating to this Agreement must be brought exclusively in a court of competent jurisdiction in New York, New York, and each party irrevocably submits to the personal jurisdiction and venue of any such court in any such action or proceeding.
11.3 EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
11.4 Arbitration of Disputes. NOTWITHSTANDING SECTIONS 11.2 AND 11.3 OF THIS AGREEMENT, EACH PARTY AGREES THAT ALL CONTROVERSIES THAT MAY ARISE BETWEEN THE PARTIES CONCERNING ANY TRANSACTION HEREUNDER OR THE CONSTRUCTION, PERFORMANCE, OR BREACH OF THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN THE PARTIES PERTAINING TO INTELLECTUAL PROPERTY OR OTHER PROPERTY, WHETHER ENTERED INTO PRIOR TO, ON OR SUBSEQUENT TO THE EFFECTIVE DATE HEREOF, SHALL BE RESOLVED BY CONFIDENTIAL ARBITRATION BY JUDICIAL ARBITRATION AND MEDIATION SERVICE (“JAMS”). ANY ARBITRATION UNDER THIS AGREEMENT SHALL BE CONDUCTED BY AN ARBITRATOR EXPERIENCED IN SOFTWARE DISPUTES PURSUANT TO THE FEDERAL ARBITRATION ACT, THE LAWS OF THE STATE OF NEW YORK AND SHALL COMPLY WITH AND BE GOVERNED BY THE ARBITRATION RULES AND PROCEDURE OF JAMS. ANY ARBITRATION SHALL TAKE PLACE EXCLUSIVELY IN NEW YORK, NEW YORK, U.S.A. ARBITRATION MUST BE COMMENCED BY SERVICE UPON THE OTHER PARTY OF A WRITTEN DEMAND FOR ARBITRATION OR A WRITTEN NOTICE OF INTENTION TO ARBITRATE. THE AWARD OF THE ARBITRATOR SHALL BE ENTERED IN ANY COURT, STATE OR FEDERAL, HAVING JURISDICTION. NO PERSON SHALL BRING A PUTATIVE OR CERTIFIED CLASS ACTION TO ARBITRATION, OR SEEK TO ENFORCE ANY PRE-DISPUTE ARBITRATION AGREEMENT AGAINST ANY PERSON WHO HAS INITIATED IN COURT A PUTATIVE CLASS ACTION, OR WHO IS A MEMBER OF A PUTATIVE CLASS WHO HAS NOT OPTED OUT OF THE CLASS WITH RESPECT TO ANY CLAIMS ENCOMPASSED BY THE PUTATIVE CLASS UNTIL: (I) THE CLASS CERTIFICATION IS DENIED; OR (II) THE CLASS IS DECERTIFIED; OR (III) THE CUSTOMER IS EXCLUDED FROM THE CLASS BY THE APPLICABLE COURT. SUCH FORBEARANCE TO ENFORCE AN AGREEMENT TO ARBITRATE SHALL NOT CONSTITUTE A WAIVER OF ANY RIGHTS UNDER THIS AGREEMENT EXCEPT TO THE EXTENT STATED HEREIN.
11.5 Special Remedies. Customer acknowledges that a breach by a party of this Agreement may cause Nptology to suffer irreparable damages, for which an award of damages may not be adequate compensation and agrees that, in the event of such breach or threatened breach or conduct constituting fraud, gross negligence or willful misconduct, Nptology will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief available at law or in equity from the federal or state courts situated in New York, New York, U.S.A. to the exclusive jurisdiction of which, both parties attorn. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitation in this Agreement to the contrary.
11.6 Notices. All notices required by or relating to this Agreement may be communicated by e-mail, provided that the sender retains confirmation of successful transmittal to the recipient. Such notices will be effective on the date indicated in such confirmation. Notices to nTopology will be sent to email@example.com and all notices to Customer will be sent to the Customer email address provided by Customer during sign-up or set forth on the applicable Order Form. Either party may change its email address for notice by sending notice in accordance with this Section.
11.7 Severability; Waiver. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable in any jurisdiction, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion, unless such waiver is set forth in writing and duly executed by the party against whom enforcement of such waiver is sought. Any delay or forbearance by either party in exercising any right hereunder will not be deemed a waiver of that right.
11.8 Independent Contractors. In making and performing this Agreement, Customer and nTopology act and will act at all times as independent contractors, and nothing contained in this Agreement will be construed or implied to create an agency, partnership or employer and employee relationship between them. Except as expressly set forth herein, at no time will either party make commitments or incur any charges or expenses for, or in the name of the other party.
11.9 Export. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from nTopology, or any products incorporating such data, in violation of the United States export laws or regulations.
11.10 No Assignment. This Agreement, and Customer’s rights and obligations herein, may not be assigned by Customer without nTopology’s prior written consent, and any attempted assignment in violation of the foregoing will be null and void. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
11.11 U.S. Government End Users. The Services and Documentation are “commercial items” as defined in 48 CFR 2.101 and their use is subject to the policies set forth in 48 CFR 12.211, 48 CFR 12.212 and 48 CFR 227.7202, as applicable.
11.12 Force Majeure. nTopology will not be liable hereunder by reason of any failure or delay in the performance of its obligations under this Agreement on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages or any other cause that is beyond the reasonable control of nTopology.
11.13 Marketing and Publicity. Customer agrees that, during the Term, nTopology may use Customer’s name and logo, subject to Customer’s then-current trademark usage guidelines, in nTopology’s marketing materials or communications (including, but not limited to, nTopology’s website and in nTopology’s marketing presentations) for the sole purpose of indicating Customer as a user of the Services. Subject to the terms and conditions of this Agreement, Customer hereby grants to nTopology a non-exclusive and limited license to use and publicly display Customer’s logo as set forth in this Section.
11.14 Modification. nTopology may modify this Agreement at any time for any reason upon notice to Customer. nTopology will make a new copy of this Agreement available at https://ntopology.com/eula. Changes will not apply retroactively and will become effective no sooner than thirty (30) days after they are posted. If Customer does not agree to the modified Agreement, Customer may terminate this Agreement upon written notice to nTopology.
11.15 Entire Agreement. This Agreement constitutes the entire agreement between Customer and nTopology and supersedes in its entirety any and all oral or written agreements previously existing between Customer and nTopology with respect to the subject matter hereof, except, and then only to the extent, that Customer and nTopology have entered into a Separate Agreement.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized corporate officers or representatives as of the Effective Date.