BY DOWNLOADING, INSTALLING AND/OR USING THE MOCANA PRODUCT YOU AGREE TO THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (THE “AGREEMENT”), AND YOU AGREE THAT YOU ARE BOUND BY AND ARE A PARTY TO THIS AGREEMENT. THE “CUSTOMER” HEREUNDER IS THE CUSTOMER IDENTIFIED ON AN ORDER FORM OR OTHER ORDERING DOCUMENT EXECUTED BY THE PARTIES AND REFERENCING THIS AGREEMENT (“ORDER FORM”). YOU WARRANT THAT YOU HAVE THE LEGAL CAPACITY TO ENTER INTO CONTRACTS ON BEHALF OF THE ORGANIZATION YOU REPRESENT.
YOUR USE OF THE PRODUCT IS EXPRESSLY CONDITIONED ON YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT INSTALL OR USE THE PRODUCT.
1. Mocana Products.
1.1 Product Overview. Mocana is the owner and provider of the TrustPoint Core, TrustPoint Client and TrustCenter products. “TrustPoint Core” is a development platform that allows customers to develop security applications for devices (“Security Application(s)”). Through the use of the TrustPoint Core, the compiled Security Application is produced for installation and use on the customer’s device. “TrustCenter” is a platform that provides services including enrollment, management, and updating of devices. “TrustPoint Clients” are applications that must be installed on each device in order to connect to TrustCenter for enrollment, update and lifecycle management services. The Order Form sets forth the products that are licensed by Customer under this Agreement (“Products”) and describes Customer’s applicable device(s) (“Device”). All Devices must be used by Customer’s employees and consultants that are providing services on behalf of Customer (“End Users”). For the avoidance of doubt, the Products licensed hereunder may include TrustPoint Core (in source code format), TrustPoint Client (in compiled binary format) and/or TrustCenter (a service platform) all as identified on an Order Form.
1.2 License to TrustPoint Core. If the Order Form indicates that Customer is licensing TrustPoint Core, then subject to the terms and conditions of this Agreement, Mocana grants Customer a worldwide, limited, non-sublicensable, non-exclusive, non-transferable, revocable license to (a) download and use TrustPoint Core to develop the Security Application and (b) install the Security Application on a Device. Customer may not sell the Device to third parties and use of the Device must be for internal business purposes. For the avoidance of doubt, the TrustPoint Core software shall not be installed on any Device. Use of TrustPoint Core is limited to the number of development licenses (“Development Licenses”) and production licenses (“Production Licenses”) specified on the Order Form.
1.3 License to TrustPoint Clients. If the Order Form indicates that Customer is licensing TrustPoint Clients, then subject to the terms and conditions of this Agreement, Mocana grants Customer a worldwide, limited, non-sublicensable, non-exclusive, non-transferable, revocable license to install and use the TrustPoint Clients on a Device provided that such Device is used internally for Customer’s benefit.
1.4 License to TrustCenter. If the Order Form indicates that Customer is licensing TrustCenter, then subject to the terms and conditions of this Agreement, Mocana grants Customer a worldwide, limited, non-sublicensable, non-exclusive, non-transferable, revocable license to (a) access or use (as indicated on the Order Form) TrustCenter for Customer’s own internal business purposes, (b) operate TrustCenter for the benefit of End Users and (c) allow End Users to access TrustCenter for purposes of managing the TrustPoint Clients. If the Order Form indicates that TrustCenter is to be hosted by Customer, then the license grant above also includes the right to download and install TrustCenter on servers managed by or on behalf of Customer. If the Order Form indicates that TrustCenter is to be hosted by Mocana, then the terms of Section 2.3 apply.
1.5 License to Documentation. Subject to the terms and conditions of this Agreement, Mocana grants Customer a worldwide, limited, non-sublicensable, non-exclusive, non-transferable, revocable license to use and make a reasonable number of copies of the Documentation for Customer’s internal business purposes and training. For the purposes of this Agreement, “Documentation” means Mocana’s generally published technical documentation regarding the Products. The Documentation does not include advertising, marketing materials, information disseminated via mailing lists, and other forms of public communication from Mocana, even if such public communications are regarding the Products.
1.6 Limitations. The licenses set forth above may be limited by the number of Development Licenses, Production Licenses, number of Devices or other license mechanisms described in the Order Form. Customer may only install the Security Application and/or TrustPoint Clients on the number of Devices indicated on the Order Form. Once a TrustPoint Client is installed on a Device, it may not be transferred to another Device. In addition, if the Order Form indicates that a license is a Development License, then Customer may not use the Product in any live or production environment (including any beta or limited release purposes). Customer also agrees to comply with any other limitations on use, download, installation or access to the Products contained in an Order Form.
1.7 Restrictions. Except as expressly permitted under this Agreement, Customer agrees that it will not, and will not allow third parties to, directly or indirectly (a) modify, translate, copy or create derivative works based on the Products, (b) reverse assemble, reverse compile, reverse engineer, or decompile the Products or otherwise attempt to discover the object code, source code, except as and only to the extent this restriction is prohibited by law, (c) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Products available to any third party, (d) remove or obscure any copyright, trademark or other proprietary notices, legends or branding of Mocana contained in or on the Products, (e) use the Products in any way that violates any applicable federal, state, local or international law or regulation, (f) attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of TrustCenter, or (g) use or access the Products to build or support and/or assist a third party in building or supporting products or services competitive with the Products or (h) combine or distribute any of the Products with any software that is licensed under terms that seek to require that any of the Products (or any associated intellectual property rights) be provided in source code form (e.g., as “open source”), licensed to others to allow the creation or distribution of derivative works, or distributed without charge. Mocana reserves the right to take action (including suspending Customer’s use of or access to TrustCenter), if it deems it reasonably appropriate or if it believes Customer is violating applicable law or there is a credible risk of harm to Mocana, its Products or any of Mocana’s other customers. For the avoidance of doubt, Customer’s installation of the Security Application and/or TrustPoint Client on a Device shall not be deemed a derivative work and is authorized by the license grants above (as applicable).
1.8 Third Party Use. Customer shall be responsible for any use of a Device by a contractor or other third party as if such contractor or third party was Customer.
2. Mocana Services.
2.1 Maintenance and Support Services. Maintenance and Support services will be provided by Mocana or its authorized reseller for the Products licensed under this Agreement as set forth at www.mocana.com/maintenance (“Support Services”). Customer hereby agrees to purchase the applicable maintenance and support for the Product for the duration of the Term. Mocana shall have no obligation to provide maintenance and support for Products that have been modified by Customer or a third party at Customer’s direction, except as otherwise agreed by Mocana in writing. Products (as defined in this Agreement) shall include any updates or upgrades provided by Mocana pursuant to the terms of this Agreement.
2.2 Training Services. In order to aid Customer with the Products, Mocana or its authorized reseller may, if stated on the applicable Order Form, provide training services to Customer for the number of hours indicated (“Training Services”). When it provides the Training Services, Mocana may provide certain materials, information, handouts, and other items to Customer (“Training Materials”). Mocana hereby grants Customer the limited to right to use the Training Materials for its own internal business purposes as part of its receipt of the training related to the Products.
2.3 Hosting Services. If an Order Form specifies that Mocana is to host TrustCenter on behalf of Customer, then the terms of Hosting Services Addendum attached hereto as Exhibit A shall apply (“Hosting Services Addendum”).
3. Ordering, Fees, Reporting and Payment.
3.1 Orders. Customer will submit Order Forms for Products directly from Mocana or through its authorized resellers. For Order Forms placed directly with Mocana, Customer will place Order Forms signed by an authorized representative of Customer, indicating specific Products ordered by Customer, quantity, term, scope of license, requested delivery dates, bill-to and ship-to addresses, tax exemptions, if applicable, and any other special instructions. Mocana may from time to time require Customer to use order forms specified by Mocana, including electronic ordering forms or systems. The terms of this Agreement shall supersede any additional or inconsistent terms on any Customer order or quote. Unless Mocana has expressly agreed in writing to such additional or inconsistent terms, such additional or inconsistent terms and conditions are hereby rejected.
3.2 Order Acknowledgement. All Orders placed directly with Mocana are subject to approval and acceptance by Mocana in writing (“Order Acknowledgement”). Mocana will use commercially reasonable efforts to provide information regarding acceptance or rejection of each Order within ten (10) days of receipt. If Mocana does not accept or reject an Order within the ten (10) days specified in the preceding sentence, the Order shall be deemed rejected on the last day of such period. Mocana’s Order Acknowledgement may include additional limitations regarding the permitted use of the Product.
3.3 Fees. Customer will pay all fees as specified in the Order Form (“Fees”) to Mocana if purchased directly from Mocana. All Fees paid to Mocana shall be paid in U.S. dollars. Payment obligations to Mocana are non-cancelable and, except as expressly stated in this Agreement, non-refundable. Mocana may modify Fees or introduce new Fees in its sole discretion; Customer understands that revised or new Fees may be required by changes in Mocana business or offerings. Any new or revised Fees will only become effective upon the renewal or amendment of the applicable Order Form.
3.4 Payment Terms. The following applies to purchases made directly by Customer to Mocana under this Agreement. Such purchases shall be paid in United States dollars and shall be due thirty (30) days from the date of invoice. Unless otherwise agreed by Mocana, all payments shall be made by wire transfer of immediately available funds to an account designated by Mocana, all wire transfer fees prepaid. Notwithstanding any other rights of Mocana, in the event of late payment by Customer (other than a payment that is not made when due as a result of a bona fide dispute between the parties), Mocana shall be entitled to interest on the amount owing at a rate of 1% per month or the highest rate allowed by applicable law, whichever is less, compounded on a daily basis from the due date of payment until the date of actual payment.
3.5 Taxes; Set-offs. Any and all payments made by Customer to Mocana in accordance with this Agreement are exclusive of any taxes that might be assessed against Customer by any jurisdiction. Customer shall pay or reimburse Mocana for all value-added, sales, use, property and similar taxes; all customs duties, import fees, stamp duties, license fees and similar charges; and all other mandatory payments to government agencies of whatever kind, except taxes imposed on the net or gross income of Mocana. All amounts payable to Mocana under this Agreement shall be without set-off and without deduction of any taxes, levies, imposts, charges, withholdings and/or duties of any nature which may be levied or imposed, including without limitation, value added tax, customs duty and withholding tax. In the event of foreign withholding taxes, Customer agrees to provide Mocana with the necessary withholding certificates or other documentation as requested.
4. Term and Termination.
4.1 Agreement Term. This Agreement will commence on the Start Date specified in the Order Form and remain effective for the term specified in the Order Form (“Initial Term”). Unless specified otherwise in the Order Form, the Agreement will automatically renew for the same period as the Initial Term (each, a “Renewal Term”) unless a party provides at least ninety (90) days’ notice of its intent to not renew. Collectively the Initial Term and Renewal Term shall be deemed the “Term.”
4.2 Termination for Cause. Either party may terminate this Agreement upon written notice to the other party if the other party materially breaches this Agreement and such breach is not cured within thirty (30) days after the non-breaching party provides written notice of such breach.
4.3 Effect of Termination. Upon any termination for cause by Mocana, Customer will pay any unpaid Fees covering the remainder of the then-current term stated on the Order Form. In no event will any termination relieve Customer of the obligation to pay any Fees payable to Mocana or its authorized reseller for the period prior to the effective date of termination. Upon any termination or expiration of this Agreement: (a) any license of TrustPoint Core shall terminate and Customer shall cease all use of TrustPoint Core, (b) any licenses to the Security Application on then-current Devices will survive however Customer may not install the Security Application on any new Devices, (c) the license to TrustPoint Client will survive only to allow TrustPoint client to remain on any then-current Devices (although the TrustPoint Client will no longer be functional) and Customer may not install TrustPoint Client on any additional Devices and (d) the license to TrustCenter shall immediately terminate and Customer will no longer have the right to access or use TrustCenter.
4.4 Survival. Sections 1.7, 4-11 and any rights to payments already accrued will survive any termination or expiration of this Agreement.
5. Intellectual Property.
5.1 Ownership. Mocana owns the Products and the Documentation (collectively the “Mocana Materials”). Mocana retains all right, title and interest (including, without limitation, all patent, copyright, trademarks, trade secret and other intellectual property rights) in and to the Mocana Materials, all related and underlying technology and any updates, enhancements, upgrades, modifications, patches, workarounds, and fixes thereto and all derivative works of or modifications to any of the foregoing. There are no implied licenses under this Agreement and any rights not expressly set forth in this Agreement are hereby expressly reserved by Mocana.
5.2 Feedback. Customer may from time to time provide suggestions, comments or other feedback with respect to the Products or any services provided hereunder (“Feedback”). Mocana may want to incorporate this Feedback into its products or services and this clause provides Mocana with the necessary license to do so. Customer hereby grants to Mocana and our assigns a royalty-free, worldwide, perpetual, irrevocable, fully transferable and sub-licensable right and license to use, disclose, reproduce, modify, create derivative works from, distribute, display and otherwise distribute and exploit any Feedback as Mocana sees fit, entirely without obligation or restriction of any kind, except that Mocana will not identify Customer as the provider of such Feedback.
6. Warranties and Disclaimers.
6.1 Limited Performance Warranty. Mocana warrants that during the Term of this Agreement, the Product will perform in all material respects in accordance with the Documentation. In the event of a breach of the foregoing warranty, Mocana’s sole obligation, and Customer’s exclusive remedy shall be for Mocana to (i) correct any failure(s) of the Product to perform in all material respects in accordance with the Documentation or (ii) if Mocana is unable to provide such a correction within thirty (30) days of receipt of notice of the applicable non-conformity, then upon request from Customer, Mocana will promptly refund to Customer if purchased directly or via the authorized reseller from whom Customer has purchased Mocana’s products, the unused portion (on a pro-rata basis based on the number of months remaining in the then current term of Agreement) any pre-paid Fees paid by Customer to Mocana or its authorized reseller for the applicable Product, provided that, upon payment of such refund, all licenses granted in this Agreement with respect to such Product shall immediately terminate. The warranty set forth in this Section does not apply if the applicable Product or any portion thereof: (a) has been altered, except by or on behalf Mocana; (b) has not been used, installed, operated, repaired, or maintained in accordance with this Agreement and/or the Documentation; (c) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident; or (d) is used on equipment, products, or systems not meeting specifications identified by Mocana in the Documentation. Additionally, the warranties set forth herein do not apply to any bug, defect or error caused by or attributable to software or hardware not supplied by Mocana.
6.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN, THE PRODUCTS, AND ANY SERVICES AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND MOCANA EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT MOCANA DOES NOT WARRANT THAT THE PRODUCTS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN TYPES OF WARRANTIES, SO THE ABOVE DISCLAIMERS MAY NOT APPLY TO Customer. THIS AGREEMENT GRANTS SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
7. Limitation of Liability.
7.1 Disclaimer of Certain Damages. IN NO EVENT SHALL MOCANA OR ITS LICENSORS BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCT, OR THE PERFORMANCE OF OR FAILURE TO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.2 Damages Cap. IN NO EVENT SHALL MOCANA’S OR ITS LICENSORS’ AGGREGATE, CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL FEES CUSTOMER WAS REQUIRED TO PAY MOCANA UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
7.3 Basis of the Bargain. CUSTOMER AGREES THAT THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS ARE A REASONABLE ALLOCATION OF THE RISK BETWEEN THE PARTIES AND WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
7.4 Exclusions. The foregoing limitations set forth in this Section 7 shall not apply to (i) Customer’s breach of the scope of the licenses set forth in Section 1.7; or (ii) damages arising out of a party’s (a) breach of its obligations under Section 9; or (b) gross negligence, willful misconduct, fraud, bad faith or a breach of applicable law.
8.1 Mocana Indemnification. Mocana will, at its expense (i) defend, or at its option settle, a claim brought against Customer by an unaffiliated third party alleging that the distribution or use by Customer of the Product infringes such party’s patent registered as of the Effective Date, or any copyright or trademark of such party, or makes unlawful use of such party’s trade secret (each a “Claim”) and (ii) indemnify Customer against and pay (a) any settlement of such Infringement Claim consented to by Mocana or (b) any damages finally awarded by a court of competent jurisdiction to such third party as relief or remedy in such Infringement Claim. Mocana will have no obligation to Customer to the extent any Infringement Claim or resulting award is based upon or results from: (i) Customer’s distribution or use of the Product in a country that is not a contracting state to the Patent Cooperation Treaty; (ii) the failure of Customer to use and/or distribute an update of the Product made available by Mocana that would have avoided the Infringement Claim; (iii) a modification of the Product that is not performed by Mocana; (iv) the combination, operation, or use of the Product with any other products, services or equipment not provided by Mocana where there would be no Infringement Claims but for such combination; (v) specifications Customer provides to Mocana; (vi) use or distribution of the Product other than in accordance with the terms and conditions of this Agreement, (vii) damages attributable to the value of the use of a non-Mocana product or service or (viii) any third party open source software.
8.2 Mocana Remedies. If, during the Term of this Agreement, the Product is, or in Mocana’s reasonable opinion is likely to become, the subject of an Infringement Claim, and/or an injunction as the result of an Infringement Claim, Mocana may, at its expense and option: (i) obtain the right for Customer to continue to exercise the rights granted in Section 2 above; (ii) modify the Product so that it becomes non-infringing but substantially functionally equivalent; or (iii) in the event that neither (i) or (ii) are commercially reasonable options, terminate Customer’s licenses with respect to the Product.
8.3 Indemnification by Customer. Customer agrees to defend and indemnify Mocana, at Customer’s expense, against (a) any introduction of malicious code or malware into TrustCenter or (b) a claim from a third party that the Device in whole or in part, or any software, hardware, materials or technology therein (except for the TrustPoint Client or Security Application), or the combination of the TrustPoint Client and/or Security Application with any other software, hardware, materials or technology used by Customer as part of the Device, infringes a patent, copyright or trademark of such third party or makes unlawful use of such party’s trade secret or (c) any claim that a Device harmed or caused damage to a third party (each of (a), (b) and (c) above, a “Claim”), and Customer shall pay any settlement of such Claim or final judgment against Mocana in any such action.
8.4 Conditions. The obligations of the indemnifying party (the “Indemnifying Party”) in this Section 8 are conditioned upon the indemnified party (“Indemnified Party”) (i) notifying the Indemnifying Party promptly in writing of any threatened or pending Claim, provided that failure to provide such notice will only relieve the Indemnifying Party of its obligations under this Section 8 to the extent its ability to defend or settle an applicable Claim is materially prejudiced by such failure to provide notice; (ii) giving Indemnifying Party, at Indemnifying Party expense, reasonable assistance and information requested by Indemnifying Party in connection with the defense and/or settlement of the Claim and (iii) tendering to Indemnifying Party sole control over the defense and settlement of the Claim. The Indemnified Party’s counsel will have the right to participate in the defense of the Claim, at Indemnified Party’s own expense. Indemnified Party will not, without the prior written consent of Indemnifying Party, make any prejudicial statement, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened Claim.
8.5 Limitation. THE PROVISIONS OF THIS SECTION 8 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF MOCANA AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT, OR MISAPROPRIATION OF ANY TRADE SECRET, BY THE PRODUCT, THE SERVICES OR ANY OTHER MATERIALS PROVIDED TO CUSTOMER HEREUNDER. SUCH LIABILITY IS LIMITED TO FIVE MILLION DOLLARS ($5,000,000).
9.1 Definition. Each party (“Disclosing Party”) may disclose “Confidential Information” to the other party (“Receiving Party”) in connection with this Agreement, which is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure including all Order Forms, as well as non-public business, product, technology and marketing information. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party; (c) is received from a third party without any obligation of confidentiality; or (d) was independently developed by the Receiving Party without use or reference to the Disclosing Party’s Confidential Information.
9.2 Protection and Use of Confidential Information. The Receiving Party will (a) protect the Disclosing Party’s Confidential Information using the same degree of care its uses to protect its own confidential or proprietary information of like importance, but in any case using no less than a reasonable degree of care, (b) limit access to the Confidential Information to those employees, affiliates, agents, consultants, legal advisors, financial advisors, and contractors (“Representatives”) who need to know such information in connection with this Agreement and who are bound by confidentiality and non-use obligations just as protective of the Disclosing Party’s Confidential Information as the terms of this Agreement; (c) except as expressly set forth herein, will not disclose any of Disclosing Party’s Confidential Information to any third parties without the Disclosing Party’s prior written consent; and (d) will not use the Disclosing Party’s Confidential Information for any purpose other than to fulfill its obligations under this Agreement. Nothing above will prevent either party from sharing Confidential Information with financial and legal advisors; provided, however, that the advisors are bound to confidentiality obligations at least as protective of the Disclosing Party as those in this Agreement.
9.3 Compelled Access or Disclosure. The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the access or disclosure.
10. Export. Customer acknowledges that the goods, software and technology acquired from Mocana are subject to U.S. export control laws and regulations, including but not limited to the International Traffic In Arms Regulations (“ITAR”) (22 C.F.R. Parts 120-130 (2010)); the Export Administration Regulations ("EAR") (15 C.F.R. Parts 730-774 (2010)); the U.S. antiboycott regulations in the EAR and U.S. Department of the Treasury regulations; the economic sanctions regulations and guidelines of the U.S. Department of the Treasury, Office of Foreign Assets Control, and the USA Patriot Act (Title III of Pub. L. 107-56, signed into law October 26, 2001), as amended. Customer is now and will remain in the future compliant with all such export control laws and regulations, and will not export, re-export, otherwise transfer any Mocana goods, software or technology or disclose any Product or technology to any person contrary to such laws or regulations. Customer acknowledges that remote access to TrustCenter may in certain circumstances be considered a re-export of software, and accordingly, may not be granted in contravention of U.S. export control laws and regulations.
11. General Terms.
11.1 Publicity. Customer grants Mocana the right to use Customer’s company name and logo as a reference for marketing or promotional purposes on Mocana’s website and in other public or private communications with Mocana existing or potential customers, subject to Customer’s standard trademark usage guidelines as provided to Mocana from time-to-time.
11.2 Force Majeure. Neither Mocana nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third-party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action.
11.3 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
11.4 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement; a person who is not a party to this Agreement may not enforce any of its terms under any applicable law.
11.5 Notice. Except as otherwise set forth herein, all notices under this Agreement will be provided by email, although Mocana may instead choose to provide notice to Customer through TrustCenter or on the Mocana website. Notices to Mocana must be sent to email@example.com except for notices related to breach of contract or indemnification, which must be sent to Mocana, Inc., 111 W Evelyn Ave., Suite 210, Sunnyvale, CA 94086, Attention: Chief Executive Officer. Notices will be deemed to have been duly given (a) the business day after it is sent, in the case of notices through email; and (b) the same day, in the case of notices through the Mocana website.
11.6 Anti-Corruption. Customer acknowledges that it is aware of, understands and has complied and will comply with, all applicable U.S. and foreign anti-corruption laws, including without limitation, the U.S. Foreign Corrupt Practices Act (“FCPA”) and the U.K. Bribery Act. Without limiting the foregoing, Customer and its employees and agents shall not directly or indirectly make any offer, payment, or promise to pay; authorize payment; or offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing any act or decision of an official of any government within the Territory or the United States Government (including a decision not to act) or inducing such a person to use his or her influence to affect any such governmental act or decision in order to assist Customer in obtaining, retaining or directing any such business
11.7 Amendment and Waivers. No modification or amendment to this Agreement will be effective unless made in writing and signed by an authorized representative of both parties. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. No waiver under this Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
11.8 Severability. This Agreement will be enforced to the fullest extent permitted under applicable law. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will 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 of this Agreement will remain in effect.
11.9 Assignment. Neither party will assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, Mocana may assign this Agreement in its entirety (including all Schedules), without consent of Customer, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of Mocana’s assets. Any purported assignment in violation of this section is void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.10 Governing Law and Venue. This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law of this Agreement, any arbitration conducted hereunder shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The state and federal courts located in Santa Clara County, California will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement or its formation, interpretation or enforcement, including any appeal of an arbitration award or for trial court proceedings if the arbitration provision below is found to be unenforceable. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.
11.11 Entire Agreement. This Agreement, including all referenced pages and Schedules, if applicable, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Without limiting the foregoing, this Agreement supersedes the terms of any online agreement electronically accepted by Customer or any Authorized Users. However, to the extent of any conflict or inconsistency between the provisions in this Agreement and any other documents or pages referenced in this Agreement, the following order of precedence will apply: (1) the terms of any Order Form (if any), (2) this Agreement and (3) any other documents or pages referenced in this Agreement. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order to Mocana if purchased directly or received by Mocana from its authorized reseller on the Customer’s behalf, vendor onboarding process or web portal, or any other Customer order documentation (excluding Schedules) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.
11.12 S. Government End Users. If Customer is a branch or agency of the United States Government, the terms of this Section 11.12 apply. The Product contains “commercial computer software” as that term is described in DFAR 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or the documentation related to such commercial computer software as specified in 48 C.F.R. 12.212 (Computer Software) and 12.11 (Technical Data) of the Federal Acquisition Regulations and its successors. If acquired by or on behalf of any agency within the Department of Defense, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202 of the DOD FAR Supplement and its successors.
Hosting Services Addendum
If the Order Form indicates that TrustCenter will be hosted by Mocana, the terms of this Hosting Services Addendum will apply:
1.1. Right to Use and Access. Subject to the terms and conditions of this Agreement, Mocana agrees to host TrustCenter software on behalf of Customer for the duration of the Term. There are no implied licenses granted to TrustCenter, all the rights not expressly granted by the license in this Section are retained by Mocana.
1.2. Authorized Users. Individuals authorized by Customer to access and use TrustCenter (each an “Authorized User”). Customer will have the sole right and responsibility for managing the access to TrustCenter. Customer will also obtain all rights, permissions and consents from Authorized Users and other Customer personnel or contractors that are necessary to grant the rights and licenses in this Agreement. Customer is responsible for all Authorized Users’ login credentials, regardless of whether such Authorized User is an administrator or otherwise. Accordingly, Customer is responsible for all resulting damages, losses, or liability if usernames and passwords are not kept confidential by Customer or its Authorized Users, including for actions taken on the TrustCenter by unauthorized third-parties logging into and accessing the TrustCenter through Authorized Users’ accounts.
2.1. Customer Data. Any system data or information pertaining to a Device (e.g., the apps on a Device, the battery life of a Device, etc.) that is collected by TrustCenter will be deemed “Customer Data”. Customer is solely responsible for any Customer Data that Customer or any Authorized User submits or otherwise makes available through TrustCenter. Customer may not submit any Customer Data that includes any personally identifiable information, social security number, passport number, driver’s license number, or similar identifier, credit card or debit card number, or any other information which may be subject to specific data privacy and security laws. Mocana does not make any representations as to the adequacy of TrustCenter to process Customer’s Data in compliance with laws specifically governing the foregoing types of data or to satisfy any legal or compliance requirements which may apply to Customer’s Data, other than as described herein. As between Mocana and Customer, Customer will own all Customer Data. By submitting, posting, storing, or otherwise making Customer Data available through TrustCenter, Customer grants Mocana right to use, host, store, reproduce, modify (e.g. to make sure Customer’s Data displays properly through TrustCenter) and publish Customer Data solely for use in connection with Mocana’s provision of TrustCenter.
2.2. Usage Data. As Mocana operates TrustCenter, it collects data pertaining to each Device, as well as information about the performance of TrustCenter (“Usage Data”). Notwithstanding anything else to the contrary herein, provided that the Usage Data is aggregated and anonymized, and no personal identifying information of the Customer is revealed to any third party, the parties agree that Mocana is free to use the Usage Data in any manner. Mocana owns all right, title, and interest in and to such Usage Data. For clarity, Mocana may not identify Customer as the source of any Usage Data.
3. Suspension. Without limiting Mocana’s termination or other rights hereunder, Mocana reserves the right to suspend Customer’s access to TrustCenter in whole or in part, without liability to Customer if it reasonably believes Customer is in breach of the Agreement or to prevent harm to other customers or third parties or to preserve the security, availability or integrity of TrustCenter. Unless this Agreement has been terminated, Mocana will restore Customer’s access to TrustCenter promptly after Mocana verifies to its satisfaction that Customer has resolved the issue requiring suspension and there is no likelihood of ongoing violation.