THIS END USER LICENSE AGREEMENT (“Agreement”) governs the use of Armadin Services. Under this Agreement, Armadin and Customer may be referred to individually as a “Party” and collectively as the “Parties”.
BY SIGNING AN ORDER FORM OR ACCESSING OR USING ANY ARMADIN TECHNOLOGY OR SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT. BY DOING SO, YOU REPRESENT AND WARRANT THAT (I) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT, AND (II) YOU HAVE READ, UNDERSTOOD, AND AGREE TO ITS TERMS.
1. DEFINITIONS. Capitalized terms have the meaning set forth below or as defined within this Agreement.
1.1 “AI Tools” means artificial intelligence and machine learning services or applications that are integrated into the Services or otherwise used as part of the Services.
1.2 “Applicable Privacy Laws” means the data protection, data security and privacy laws and regulations of any jurisdiction applicable to the Services under this Agreement.
1.3 “Armadin Technology” means the Services, Performance Data, the Documentation, any Security Insights, Reserved Materials, and all applicable software, data, or technical information used by Armadin or provided to Customer in connection with the foregoing.
1.4 “Assessments” means the reports, assessments, briefings and other materials provided by Armadin detailing the results of the Services or the Professional Services, as applicable, including those described on the Order Form or SOW.
1.5 “Confidential Information” means all information regarding a party’s business, including, without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information, that (a) is clearly identified as confidential or proprietary at the time of disclosure, or (b) the receiving party knew or should have known, given the nature of the information and the circumstances of its disclosure, was considered confidential or proprietary.
1.6 “Customer Content” means any content or information owned by Customer that is provided to Armadin or that Armadin accesses on the Customer Systems (as defined below) in connection with the Services, including from Third-Party Services. Customer Content does not include Performance Data.
1.7 “Documentation” means all specifications, user manuals, and other technical materials relating to the Services that are provided or made available to Customer, and as may be modified by Armadin from time to time.
1.8 “Effective Date” means the date of the first Order Form executed under this Agreement.
1.9 “Fees” means the fees for the Services and any Professional Services as set forth on an Order Form or SOW.
1.10 “Order Form(s)” means the order form executed by Customer with Reseller or Armadin with respect to the Armadin products and services.
1.11 “Performance Data” means general performance and usage data about the Services or the Professional Services, including Customer’s use of the Services (such as technical logs). Performance Data does not include any Customer Content.
1.12 “Personal Data” means Customer Content that constitutes “personal data,” “personal information,” or “personally identifiable information” defined in Applicable Privacy Laws or information of a similar character regulated thereby, except that Personal Data does not include such information pertaining to Customer personnel who are business contacts for Armadin, or such information received by Armadin directly or from other sources (such as its other customers) independent of Armadin’s relationship with Customer.
1.13 “Professional Services” means any integration, onboarding, training, or other services related to the Services performed by Armadin for Customer, as identified on a SOW.
1.14 “Reseller” means the entity authorized by Armadin to enter into Order Forms with Customer for Armadin products and services.
1.15 “Services” means Armadin’s proprietary services as described in an Order Form.
1.16 “SOW” means a statement of work that describes any Professional Services and the applicable Fees.
1.17 “Term” has the meaning given in Section 9.1 (Term).
1.18 “Third-Party Service” means any third-party service or application connected to, or integrated with, the Services by or on behalf of Customer.
1.19 “Users” means employees who are authorized by Customer to access the Services pursuant to Customer’s rights under this Agreement.
2. USAGE RIGHTS OF ARMADIN SERVICES; RESTRICTIONS.
2.1 Subscription to the Services. Subject to the terms and conditions of this Agreement, Armadin hereby grants to Customer a revocable, non-sub-licensable, non-transferable (except as provided in Section 13.3 (Assignment; Subcontractors)), non-exclusive right to access and use the Services and accompanying Documentation solely for Customer’s internal business purposes up to any service limits set forth in the Order Form. Where the Services involve access to software, each User will be provided access to and use of the Services through unique and confidential account credentials. These credentials cannot be shared or used by more than one individual User to access the Services. Customer is responsible for maintaining the confidentiality of all Users’ account credentials and is solely responsible for all activities that occur under these User accounts. Customer will promptly notify Armadin of any actual or suspected unauthorized use or access to its account.
2.2 Restrictions. Customer will not, and will not permit any User or other party to: (a) allow any third party to access the Armadin Technology except as expressly allowed herein; (b) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Armadin Technology for the benefit of any unauthorized third party; (c) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of any software contained in the Armadin Technology, except as permitted by law; (d) interfere in any manner with the operation of the Armadin Technology or the hardware and network used to operate the same, or attempt to probe, scan or test vulnerability of the Armadin Technology without the prior written consent of Armadin; (e) attempt to circumvent any usage restrictions of the Armadin Technology or technical mechanisms or protections; (f) modify, copy or make derivative works based on any part of the Armadin Technology; (g) access or use the Armadin Technology to build a similar or competitive product or service; or(h) otherwise use the Armadin Technology in any manner that exceeds the scope of use permitted under Section 2.1 (Subscription to the Services) or in a manner inconsistent with applicable law, the Documentation or this Agreement.
2.3 Suspension. Armadin reserves the right to suspend its provision of, or Customer’s or any User’s access to, the Services for any failure, or suspected failure, to comply with the restrictions set forth in Section 2.2 (Restrictions). Armadin may also suspend Customer’s or any User’s access to all or any part of the Services, without notice and without incurring any resulting obligation or liability, if Armadin believes, in its good faith and reasonable discretion, that Customer’s or any User’s use of the Services poses a risk to the security or integrity of Armadin’s systems, interferes with Armadin’s ability to reliably provide the Services to other customers, or may subject Armadin to liability. Armadin will use reasonable efforts to notify Customer or the applicable User(s) prior to suspension and will restore access to Customer or the applicable User(s) as soon as such risks no longer apply.
2.4 Third-Party Services. The Services may involve integration with certain Third-Party Services or Armadin’s access to Third-Party Services. Customer is responsible for enabling the integration or facilitating the access to each Third-Party Service, and by doing so, Customer acknowledges that: (a) Armadin may access any Customer Content in connection with such Third-Party Service, and (b) it is instructing Armadin to access such Customer Content (including Personal Data where directed). Third-Party Services are not under the control of Armadin and Armadin is not responsible for any Third-Party Services. Customer’s use of the Third-Party Services is governed by the Customer’s agreement with providers of the Third-Party Services.
2.5 Use of AI Tools. The Services may incorporate or be provided with the assistance of AI Tools. Customer Content may be shared with the AI Tools in order to provide the Services, provided thatArmadin shall ensure that its contractual terms with any third-party provider of AI Tools contain commitments to treat Customer Content confidentially and solely for the purpose of providing services to Armadin.
2.6 Supplemental Terms. Certain Services may be subject to additional terms (“Supplemental Terms”). Such Supplemental Terms will either be set forth in the applicable Order Form or become an addendum to this Agreement. If this Agreement is inconsistent with the Supplemental Terms, then the Supplemental Terms control with respect to the applicable Service.
2.7 Evaluations, Proof of Concept. Armadin may provide Services to Customer or make the Services available to Customer for trial, testing, or evaluation purposes, which shall be expressly identified as trial or evaluation Services in the Order Form ("Evaluation Services"). Unless provided otherwise in an Order Form, the Evaluation Services shall have a term of thirty (30) days. Armadin reserves the right to terminate the Evaluation Services at any time. Notwithstanding anything to the contrary contained in this Agreement, and except as provided in an Order Form, only the following terms of this Agreement apply to Evaluation Services: 1 (Definitions), 2 (Usage Rights of Armadin Services; Restrictions), 3 (Professional Services and Support), 4 (Customer Responsibilities), 5 (Fees andPayment), 6 (Proprietary Rights), 7 (Privacy; Data Security), 8 (Confidential Information), 9.3 (Effect of Termination), 10.3 (Disclaimer), 11 (Indemnity), 12 (Limitation of Liability), 13 (General Provisions).
3. PROFESSIONAL SERVICES AND SUPPORT.
3.1 Professional Services. If the Customer desires Armadin to provide any Professional Services, the parties will create a SOW detailing such Professional Services. Armadin will provide the Professional Services as set forth in a SOW that is agreed upon by the parties. The Professional Services and any deliverables provided as a part thereof may only be used in conjunction with the Services. All Professional Services will be provided remotely unless otherwise agreed in the applicable SOW. If the Professional Services are to be provided on Customer’s premises: (a) Customer will provide safe and adequate space, power, network connections and other resources as required by Armadin, (b) Customer will provide subject matter experts and other personnel as required, and (c) Armadin will adhere to Customer’s established written guidelines, which will be provided to Armadin, concerning on-site visits by contractors and the use of Customer’s computer equipment. To the extent specified on the SOW, Customer will reimburse Armadin for reasonable travel and lodging expenses in connection with providing the Professional Services.
3.2 Support. Subject to the terms and conditions of this Agreement, Armadin will exercise commercially reasonable efforts to:(a) provide support to Customer for the use of Services, including in accordance with any support terms described in an Order Form or SOW; and (b) keep the Services operational and available to Customer, in each case in accordance with industry standards and its standard policies and procedures.
4. CUSTOMER RESPONSIBILITIES.
4.1 Cooperation. Customer will reasonably cooperate with Armadin in the performance of the Services and Professional Services. Such cooperation may include: (a) the appointment of a single point of contact for all matters related to the Services or Professional Services, (b) the provision of reasonable remote network access to those Customer Systems that are required for the performance of the Services or Professional Services, and (c) making suitably trained personnel with sufficient knowledge of Customer’s systems available during normal business hours.
4.2 Customer Content and Systems. Customer will have the sole responsibility for: (a) Customer’s information technology infrastructure, including as applicable, network, cloud storage, applications, computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of Third-Party Services (“Customer Systems”); (b) ensuring that the provision of the Services or Professional Services is not prohibited by any contractual terms regarding the Customer Systems or otherwise violates any obligations of Customer; (c) determining which Customer Systems shall be subject to assessment through the Services and timing of such Services; (d) the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content uploaded to the Services or provided to Armadin; and (e) the back-up and security of the Customer Content on the Customer Systems.
4.3 Acknowledgment of Services Risks. The Services may involve, among other things, Armadin scanning Customer System for vulnerabilities and attempts to exploit such vulnerabilities to prove unauthorized access is possible. As part of the Services, Customer Content on Customer Systems may be accessible to Armadin, and portions of such data may be downloaded as proof of access. Customer acknowledges that, given the nature of the Services and Professional Services, there are various risks inherent within the Services, including but not limited to, risks of: (a) potential damage to the Customer Systems; (b) disruption or outages to the Customer Systems or Customer’s operations; (c) loss of Customer Content or other data stored on the Customer Systems; and (d) inadvertent access to confidential, regulated or highly secretive parts of Customer Systems or Customer Content. While Armadin shall take reasonable precautions designed to avoid any of the foregoing risks, by procuring the Services, Customer accepts such risks and acknowledges that it is responsible for taking precautionary and protective measures to minimize the impact of any such risks, such as determining the scope and timing of the applicable Services to minimize disruption, conducting data back-ups and identifying any hard limitations on the scope of the Services. Armadin shall take commercially reasonable steps to avoid accessing or downloading any information that is likely to lead to any data breach notification obligation.
5. FEES AND PAYMENT. Customer shall pay Reseller or Armadin the fees as set forth on the applicable Order Form or SOW. Among Armadin’s other remedies, Armadin shall have the right to suspend or terminate the license in its sole discretion if Customer fails to pay the fees as set forth on the applicable Order Form. Orders are non-cancelable and non-refundable.
6. PROPRIETARY RIGHTS.
6.1 Armadin Technology. Customer acknowledges that Armadin retains all right, title and interest in and to the Armadin Technology, including any enhancements, improvements, or derivatives thereto, and that the Armadin Technology is protected by intellectual property rights owned by or licensed to Armadin. Other than as expressly set forth in this Agreement, no license or other rights in the Armadin Technology are granted to the Customer.
6.2 Customer Content. Customer retains all right, title and interest in and to the Customer Content and Customer Systems. Customer hereby grants to Armadin a non-exclusive, worldwide, royalty-free and fully paid-up license during the Term to access and use the Customer Content and Customer Systems to provide the Services, Professional Services, and any accompanying support to Customer as set forth in this Agreement and to exercise the rights and obligations specified herein.
6.3 Assessments. The Services or Professional Services may involve the development of Assessments. Customer shall own any Assessments apart from any Reserved Materials or Security Insights contained in such Assessments. Armadin hereby grants to Customer a royalty-free, worldwide, license to use the Security Insights and Reserved Materials contained in an Assessment solely as part of the Assessment and Customer’s internal use of the Assessment. For clarity, to the extent Armadin discovers any vulnerabilities, configuration errors, anomalies, indicators of compromise or other threats either independently of the Services or as part of the Services (“Security Insights”), Armadin shall own all rights in such Security Insights and such Security Insights shall be considered Armadin Confidential Information. Armadin is entitled to share such Security Insights with other customers so long as Armadin does not identify Customer, or disclose any Customer Confidential Information, in connection with such Security Insights. Notwithstanding anything to the contrary herein, Armadin retains all right, title and interest in any and all methods, materials, technologies, tools, applications, techniques, Assessment formats, data, information, and other know-how developed by or for Armadin contained in, or disclosed by, any Assessment (collectively, “Reserved Materials”). The parties acknowledge and agree that Armadin may use Security Insights with a variety of AI Tools in order to provide services to its customers generally and to train its models and the AI Tools.
6.4 Performance Data. Armadin may monitor Customer’s use of the Services and Professional Services and may collect and compile Performance Data. As between Armadin and Customer, all right, title, and interest in the Performance Data, and all intellectual property rights therein, belong to and are retained solely by Armadin. Armadin may use Performance Data to operate, improve, analyze, and support the Services and for other lawful business purposes, provided that the Performance Data will not identify Customer or Customer’s Confidential Information.
6.5 Feedback. Customer or its Users may give feedback to Armadin on the use, operation, and functionality of the Services and Professional Services, including information about operating results, known or suspected bugs, errors, or compatibility problems, suggested modifications, and user-desired features, functionality, or workflows (collectively, “Feedback”). Armadin may use and incorporate such Feedback in connection with its business, products and services without restriction or consideration to Customer. Armadin will not identify Customer as the source of any such feedback. Armadin acknowledges that all Feedback is provided to Armadin on an “as is” basis and that Customer is not responsible for Armadin’s use of any Feedback, including any results therefrom.
7. PRIVACY; DATA SECURITY.
7.1 Privacy. Armadin will process Personal Data only in accordance with Customer’s instructions to Armadin contained in the Agreement. This Agreement is a complete expression of such instructions, and Customer’s additional instructions will be binding on Armadin only pursuant to an amendment to this Agreement signed by both parties. By entering into this Agreement, Customer instructs Armadin to process Personal Data to provide the Services and to perform its other obligations and exercise its rights under the Agreement. Customer will ensure (and is solely responsible for ensuring) that it has given such notices to and obtained such consents and permissions from all relevant third parties, and has reserved all rights, in each case, as maybe required under applicable law or otherwise for Armadin to process Personal Data as contemplated by the Agreement.
7.2 Data Security. During the Term, Armadin will implement and maintain commercially reasonable administrative, technical and physical measures designed to safeguard against unauthorized access to or use or disclosure of any Customer Content or Personal Data. Armadin may update the Security Measures from time to time, so long as the updated measures do not materially decrease the overall protection of Customer Content or Personal Data. Customer and its Users will be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and usernames required to access the Services.
7.3 Security Incidents. In the event Armadin becomes aware of any loss or unauthorized access, disclosure or use of any Personal Data that is in Armadin’s possession or control (“Security Incident”), Armadin will: (a) promptly notify Customer in writing of such Security Incident, and (b) take commercially reasonable steps designed to 1) identify the cause of such Security Incident, 2) minimize the harm associated therewith and 3) prevent reoccurrence thereof. Any notification of any Security Incident will describe, to the extent known, details of the Security Incident, including steps taken by Armadin, or that Armadin recommends that Customer take, to mitigate the potential risks. Armadin’s notification of or response to a Security Incident will not be construed as Armadin’s acknowledgement of any fault or liability with respect to the Security Incident.
8. CONFIDENTIAL INFORMATION.
8.1 Restrictions. As a recipient of Confidential Information, each party will (a) use the Confidential Information of the disclosing party only as set forth in this Agreement, (b) not disclose to any third party any Confidential Information of the disclosing party, except as expressly permitted under this Agreement, (c) limit access to the Confidential Information of the disclosing party to its employees and contractors who have a need to know such information to use or provide the Services, and ensure that such employees or contractors are bound by confidentiality obligations at least as protective as those contained herein, and (d) protect the Confidential Information of the disclosing party from unauthorized use, access, or disclosure in a reasonable manner. Certain Services or Professional Services may require Armadin to disclose Assessments to third parties (such as to the PCI SSC in connection with a PCI DSS Audit) and to the extent applicable to the Services, Customer authorizes such disclosure.
8.2 Exclusions. The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information that (a) is or becomes generally known and available to the public through no act or omission of the receiving party, (b) was in the receiving party’s lawful possession without confidentiality restrictions prior to disclosure by the disclosing party, (c) is received without confidentiality restrictions from a third party with the right to make such a disclosure, or (d) is independently developed by the receiving party. The receiving party may disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body, provided that the receiving party will, if permitted by law, provide advance notice of the disclosure to the disclosing party and cooperate so that the disclosing party has the opportunity to obtain appropriate confidential treatment for such Confidential Information.
9. TERM AND TERMINATION.
9.1 Term. The term of this Agreement will commence on the Effective Date and continue until all Order Forms and SOWs have expired, unless terminated earlier in accordance with the terms of this Agreement (the “Term”). Each Order Form shall have the term set forth in an Order Form. Each SOW shall have the term specified on the SOW.
9.2 Termination. Either party may terminate this Agreement upon written notice if: (a) the other party materially breaches theAgreement and does not cure such breach (if curable) within thirty (30) days after written notice of such breach, or (b) the other party: (i) becomes insolvent, (ii) files a petition in bankruptcy that is not dismissed within sixty (60) days of commencement, or (iii) makes an assignment for the benefit of its creditors.
9.3 Effect of Termination. Upon the expiration or termination of this Agreement for any reason, the rights and licenses (other than to the Assessments) granted to Customer hereunder will immediately terminate and Customer will cease use of the Services and Documentation. Termination of this Agreement will not relieve Customer of its obligation to pay all Fees that accrued prior to such termination. Each party will return to the other or destroy all property (including any Confidential Information) of the other party. Notwithstanding the foregoing, each party may retain the Confidential Information of the other in accordance with its standard backup procedures or as otherwise provided in this Agreement, subject to the requirements in Section 7 (Privacy; Data Security) and Section 8 (Confidential Information). Sections 1 (Definitions), 2.2 (Restrictions), 4.3 (Acknowledgment of Services Risks), 5 (Fees and Payment), 6 (ProprietaryRights) (excluding any term-limited license grants), 8 (Confidential Information), 9.3 (Effect of Termination), 10.3 (Disclaimer), 11 (Indemnity), 12 (Limitation of Liability) and 13 (General Provisions) will survive the termination of this Agreement.
10. WARRANTIES; DISCLAIMER.
10.1 By Customer. Customer represents and warrants that it has all rights and authorizations necessary: (a) to enable Armadin to perform the Services and Professional Services on the Customer Systems and Armadin’s performance of the foregoing in accordance with the scope of this Agreement shall not violate applicable law or any of Customer’s contractual or other legal obligations; and (b) to upload and use the Customer Content in connection with the Services and Professional Services without violating any third-party intellectual property, confidentiality, privacy or other rights, including Applicable Privacy Laws.
10.2 By Armadin. During the Term, Armadin represents and warrants that: (a) the Services, when used in accordance with the Documentation and the terms of this Agreement, will operate as described in the Documentation in all material respects; and (b) it will perform the Professional Services in a professional workmanlike manner in accordance with applicable industry standards. If Customer notifies Armadin of any breach of the foregoing warranties, Armadin will, as Customer’s sole and exclusive remedy, use commercially reasonable efforts to repair and fix the non-conforming Services or re-perform the Professional Services in a conforming manner.
10.3 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) THE ARMADIN TECHNOLOGY IS PROVIDED “AS IS” AND “AS AVAILABLE” AND (B) ARMADIN AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, AND HEREBY EXPRESSLY DISCLAIM ANY AND ALL OTHER WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANT ABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. ARMADIN DOES NOT WARRANT OR REPRESENT THAT THE ARMADIN TECHNOLOGY OR THE ASSESSMENTS WILL BE FREE FROM BUGS OR UNINTERRUPTED OR ERROR-FREE, OR MAKE ANY OTHER REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE ARMADIN TECHNOLOGY IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. ARMADIN MAKES NO WARRANTY OR GUARANTEE THAT THE SERVICES WILL BE ABLE TO DETECT EACH AND EVERY SECURITY VULNERABILITY OR PREVENT CUSTOMER FROM ANY CYBER ATTACKS OR SECURITY INCIDENTS. THE SERVICES OR PROFESSIONAL SERVICES DO NOT MAKE ANY GUARANTEES REGARDING THE EXTENT OF VULNERABILITIES ON THE CUSTOMER SYSTEMS. CUSTOMER ACKNOWLEDGES AND AGREES THAT ARMADIN IS NOT LIABLE, AND CUSTOMER AGREES IT WILL NOT SEEK TO HOLD ARMADIN LIABLE, FOR ANY OF THE ACKNOWLEDGED RISKS DESCRIBED IN SECTION 4.3 (ACKNOWLEDGMENT OF SERVICES RISKS).
11. INDEMNITY.
11.1 By Armadin. If any action is instituted by a third party against Customer based upon a claim that the Armadin Technology, as delivered and when used in accordance with this Agreement, infringes any third party’s intellectual property rights, Armadin will defend such action at its own expense on behalf of Customer and will pay all damages attributable to such claim that are finally awarded against Customer or paid in settlement. The foregoing indemnification obligation does not apply to alleged infringement or misappropriation arising from Customer Content. If the Armadin Technology is enjoined or, in Armadin’s determination is likely to be enjoined, Armadin will, at its option and expense(a) procure for Customer the right to continue using the Armadin Technology, (b) replace or modify the Armadin Technology so that it is no longer infringing but continues to provide comparable functionality, or (c) terminate this Agreement and Customer’s access to the Armadin Technology and refund any amounts previously paid for the Armadin Technology attributable to the remainder of the then-current Order Term or term of the SOW. Armadin will have no obligation under this Section 11.1 (By Armadin) or otherwise with respect to any infringement claim based upon: (i) any use of the Armadin Technology not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the Armadin Technology in combination with other products, equipment, software or data not supplied by Armadin,including Third-Party Services; or (iii) any modification of the Armadin Technology by any person other than Armadin or its authorized agents. This Section 11.1 (By Armadin) sets forth the entire obligation of Armadin and the exclusive remedy of Customer against Armadin for any claim that the Armadin Technology infringes a third party’s intellectual property rights.
11.2 By Customer. If any action is instituted by a third party against Armadin relating to Customer’s breach of Section 10.1 (By Customer), Customer will defend such action at its own expense on behalf of Armadin and will pay all damages attributable to such claim that are finally awarded against Armadin or paid in settlement of such claim.
11.3 Procedure. Any party that is seeking to be indemnified under the provision of this Section 11 (Indemnity) (the “Indemnified Party”) must (a) promptly notify the other party (the “Indemnifying Party”) of any third-party claim, suit, or action for which it is seeking an indemnity hereunder (a “Claim”), (b) give the Indemnifying Party the sole control over the defense of such Claim, and (c) reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense. The Indemnifying Party will not agree to any settlement that requires theIndemnified Party to admit fault or to take or refrain from taking any action without the Indemnified Party’s prior written consent.
12. LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL ARMADIN OR CUSTOMER BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOST PROFITS IN ANY WAY RELATING TO THIS AGREEMENT. IN NO EVENT WILL ARMADIN’S OR CUSTOMER’S AGGREGATE, CUMULATIVE LIABILITY IN ANY WAY RELATING TO THIS AGREEMENT EXCEED THE AMOUNT OF FEES ACTUALLY RECEIVED BY ARMADIN FROM CUSTOMER PURSUANT TO THE APPLICABLE ORDER FORM OR SOW DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THE FOREGOING LIMITATIONS WILL NOT APPLY TO PAYMENT AND INDEMNITY OBLIGATIONS (TO THE EXTENT PAID TO THE THIRD-PARTY PLAINTIFF), TO BREACHES OF SECTION 2.2 (RESTRICTIONS), OR TO LIABILITIES THAT CANNOT BE LIMITED BY LAW. THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR SUCH LIMITATIONS.
13. GENERAL PROVISIONS.
13.1 Governing Law. This Agreement will be governed by, and all disputes arising under or in connection with thisAgreement will be resolved in accordance with, the laws of California, United States of America, exclusive of conflict or choice of law rules.
13.2 Dispute Resolution. All disputes arising out of or in connection with this Agreement, including any question regarding its formation, existence, validity or termination, will be finally settled under the Rules of Arbitration of the International Chamber of Commerce (“ICC”) (the “Arbitration Rules”) by one or more arbitrators appointed in accordance with the said Arbitration Rules. The seat, or legal place, of the arbitration will be San Francisco, California, United States of America. The language of the arbitration will be English. Except as otherwise specifically limited in this Agreement, the arbitral tribunal will have the power to grant any remedy or relief that it deems appropriate, whether provisional or final, including but not limited to conservatory relief and injunctive relief. Each party retains the right to apply to any court of competent jurisdiction for interim and/or conservatory measures, including pre-arbitral attachments or preliminary injunctions, and any such request will not be deemed incompatible with, or a waiver of, this agreement to arbitrate. The existence and content of the arbitral proceedings and any rulings or awards will be kept confidential by the parties and members of the arbitral tribunal except (i) to the extent that disclosure may be required of a party to fulfill a legal duty, protect or pursue a legal right, or enforce or challenge an award in bona fide legal proceedings before a state court or other judicial authority, (ii) with the consent of all parties, (iii) where needed for the preparation or presentation of a claim or defense in this arbitration,(iv) where such information is already in the public domain other than asa result of a breach of this clause, or (v) by order of the arbitraltrizbunal upon application of a party. The arbitration award will be final and binding on the parties, and the parties undertake to carry out any award without delay. The parties will be deemed to have waived their right to any form of recourse insofar as such waiver can validly be made. Judgment on the award may be entered in any court of competent jurisdiction.
13.3 Assignment; Subcontractors. Neither party may assign this Agreement, including any rights or obligations arising hereunder, without the prior written consent of the other, except that either party may assign this Agreement without the consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment or transfer in violation of the foregoing will be null and void. This Agreement will be binding upon each party’s respective permitted successors and assigns. Customer agrees that Armadin may subcontract certain aspects of the Services and Professional Services to qualified third parties, provided that any such subcontracting arrangement will not relieve Armadin of any of its obligations hereunder.
13.4 Order of Precedence. In the event of a conflict between an Order Form, a SOW or this Agreement, the following order of precedence will govern: This Agreement, the Order Form and the SOW. Notwithstanding the foregoing, an Order Form or SOW will take precedence over this Agreement if the Order Form or SOW expressly states that it is intended to control.
13.5 Notices. Any notice under this Agreement must be given in writing to the other party at the email or physical address set forth on an Order Form or SOW (as applicable). Notices will be deemed to have been given upon: (a) receipt (or when delivery is refused) if delivered in person or sent by recognized courier service, or (b) upon transmission, if sent by email. To be deemed effective, any email notice of the other party’s material breach pursuant to Section 9.2 (Termination) must reference Section 9.2 (Termination).
13.6 Force Majeure. Except for payment obligations, neither Party will be in breach of this Agreement for any delay in performance caused by circumstances beyond its reasonable control, provided that the affected Party promptly notifies the other Party and uses reasonable efforts to resume performance.
13.7 Publicity. Armadin may use Customer’s name and logo to identify Customer as a customer, including on Armadin’s website, social media and in sales and marketing materials, in the same manner in which it uses the names of its other customers. Armadin will use Customer’s name and logo in accordance with Customer’s applicable branding guidelines and Armadin may not use Customer’s name or logo in any other way without Customer’s prior written consent.
13.8 Export. Customer agrees not to use, export, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from Armadin, or any products utilizing such data, in violation of the United States export laws or regulations. Further, each party agrees to comply with all relevant export laws and regulations of the United States and the country or territory in which the Services are provided (“Export Laws”) to assure that neither any deliverable, if any, nor any direct product thereof is (1) exported, directly or indirectly, in violation of Export Laws or (2) intended to be used for any purposes prohibited by the Export Laws, including without limitation nuclear, chemical, or biological weapons proliferation. Customer further represents that (i) Customer is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and(ii) Customer is not listed on any U.S. Government list of prohibited or restricted parties. Customer acknowledges and agrees that products, services or technology provided by Armadin are subject to the export control laws and regulations of the United States, agrees to comply with these laws and regulations, and agrees that it will not, without prior U.S. government authorization, export, re-export, or transfer Armadin products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
13.9 U.S. Government Restricted Rights. If Customer is a government end user, then this provision also applies to Customer. The software contained within the Services and provided in connection with this Agreement has been developed entirely at private expense, as defined in FAR section 2.101, DFARS section 252.227-7014(a)(1) and DFARS section 252.227- 7015 (or any equivalent or subsequent agency regulation thereof), and is provided as “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFARS section 227.7202 and FAR section 12.212, and to the extent required under U.S. federal law, the minimum restricted rights as set forth in FAR section 52.227-19 (or any equivalent or subsequent agency regulation thereof), any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government will be governed solely by this Agreement and will be prohibited except to the extent expressly permitted by this Agreement.
13.10 Miscellaneous. This Agreement (as modified by the parties from time to time) is the entire understanding and agreement of the parties and supersedes any and all previous and contemporaneous understandings. Only a written amendment signed by both parties may modify this Agreement. This Agreement may be executed in counterparts, which taken together will form one legal instrument. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. 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. All waivers must be in writing. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.” The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement. Parties to this Agreement; Reseller Products and Services. For clarity, this Agreement is a contract between Armadin and Customer and Reseller is not a party to this Agreement. Customer acknowledges that any products and services that Customer purchases from Reseller, other than Armadin products provided pursuant to this Agreement and services provided to Customer directly by Armadin, are not subject to thisAgreement. Any other Reseller services or other third party products Customer purchases from Reseller (“Reseller Products and Services”) are provided solely by Reseller and are subject to the terms of the agreement Customer entered into with the Reseller, not this Agreement. Customer acknowledges thatArmadin has no liability with respect to, and hereby releases Armadin from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from Reseller Products and Services.
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