THIS XAGE PROOF OF CONCEPT & EVALUATION LICENSE AGREEMENT TOGETHER WITH ANY ACCEPTED XAGE ORDER FORM(S) AND/OR AGREED PROOF OF CONCEPT PLAYBOOK (THE “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN THE CUSTOMER LISTED IN THE APPLICABLE ORDER FORM(S) (“CUSTOMER”) AND XAGE SECURITY, INC., A DELAWARE CORPORATION WITH A PLACE OF BUSINESS AT 445 SHERMAN AVENUE, SUITE 200, PALO ALTO, CA 94306 (“XAGE”). THIS AGREEMENT SETS FORTH THE TERMS AND CONDITIONS FOR CUSTOMER TO EVALUATE FEATURES AND FUNCTIONALITY OF CERTAIN XAGE TECHNOLOGY IN A NON-PRODUCTION DEPLOYMENT OF CUSTOMER’S ENVIRONMENT. BY AGREEING TO AN ORDER FORM INCORPORATING THIS AGREEMENT, CLICKING “I ACCEPT”, OR PROCEEDING WITH THE INSTALLATION AND/OR USE OF THE XAGE FABRIC, OR USING THE XAGE FABRIC AS AN AUTHORIZED REPRESENTATIVE OF THE CUSTOMER NAMED ON THE APPLICABLE ORDER FORM ON WHOSE BEHALF YOU INSTALL AND/OR USE THE XAGE FABRIC, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND ACCEPT THIS AGREEMENT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS. IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR OTHERWISE USE THE XAGE FABRIC. THE EFFECTIVE DATE OF THIS AGREEMENT SHALL BE THE DATE THAT YOU ACCEPT THIS AGREEMENT AS SET FORTH ABOVE.

 

1. Definitions.

1.1. “Documentation” means any instructions, specifications, documents or materials, that describe the operation and use of the Xage Fabric that Xage makes generally available to end users.

1.2. “Customer Environment” means the network, infrastructure, digital system, information technology lab, data center, manufacturing operation, facility or environment operated or managed by Customer into which or for which the Xage Fabric is deployed or which is entered into or accessed by Xage.

1.3. “Evaluation Period” means (a) the period specified in an Order Form for Customer to use and evaluate the Xage Fabric; or (b) if no Evaluation Period is specified in an Order Form, the thirty (30) day period that begins upon delivery by Xage of the Xage Fabric pursuant to this Agreement.

1.4. “Evaluation Site[s]” means the Customer’s facilities, if any, set forth in an Order Form.

1.5. “Hardware” means third party manufactured hardware equipment and accessories identified in an Order Form, including hardware on which Xage preinstalls the Xage Software.

1.6.  “Identities/Sources” means any application identities, device identities, or user identities purchased under this Agreement for interaction with the Xage Fabric or any data sources that interact with the Xage Fabric.  For clarity, (i) each of the above described identities is only granted on a single identity per application, device, or user basis, with a single identity not to be shared or otherwise exploited in a manner that allows more than one application, device, or user per identity and (ii) for each type of identity (application, device, or user, respectively) the quantities thereof, whether actually used or not, and regardless of whether simultaneously connected or not, that may be instantiated within the Xage Fabric under this Agreement shall not exceed the number specifically purchased and defined on the agreed Order Form related hereto.

1.7.  “Intellectual Property Rights” means any and all intellectual property rights in any part of the world, whether registered or unregistered, and all registrations, applications, renewals, extensions and other government issued indicia of ownership thereof, including, but not limited to, rights comprising or relating to: (a) patents, patent disclosures and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with the goodwill associated therewith; (c) copyrights and copyrightable works (including, but not limited to, computer programs), and rights in works of authorship, data and databases; (d) trade secrets, know-how and other confidential information; and (e) all similar or equivalent rights or forms of protection.

1.8. “Open-Source Components” means any software component that is subject to any open-source copyright license agreement.

1.9. “Order Form” means Xage’s written or online order form or Proof of Concept Playbook specifying details of the proof of concept and Customer’s evaluation of the Xage Technology, including the specific Xage Software and any Hardware which may be included, any Identities/Sources limitations, the Evaluation Site and Evaluation Period and any applicable fees.

1.10. “Project Manager” means the individual appointed by each party to be the primary point of contact and liaison for matters concerning this Agreement. A party may change its Project Manager upon written notice to the other party.

1.11.  “Xage Fabric” means the Xage Software identified in Customer’s Order Form, which may include Xage Manager, Xage Broker, Xage Node, Xage Enforcement Point, Client Agent and/or Cloud software products as described on Xage’s website at https://xage.com/products/xage-fabric-platform/.

1.12. “Xage Software” means Xage’s proprietary software, whether in source or executable code, together with any bug fixes or other code provided by Xage to Customer.

1.13. “Xage Technology” means any and all of the following: (a) Xage Fabric and other Xage Software; (b) any accompanying or related Documentation; (c) other materials including, but not limited to content made available by Xage; and (d) any and all modifications, improvements, and/or enhancements to any of the items set forth in clause (a) through (c).

2. Services.

2.1. Evaluation Services. Xage shall use commercially reasonable efforts to perform (or cause to be performed), for Customer the services specified in the applicable Order Form, which may include analysis of Customer’s security requirements and Customer Environment, training of Customer personnel, and the installation, configuration, and/or implementation of Xage Fabric and/or Hardware and/or development of Xage Technology in connection with the Customer’s evaluation of the Xage Fabric pursuant to this Agreement (the “Evaluation Services”) if and to the extent specified in an Order Form.

2.2. Changes. A change order to an Order Form shall be made only in a writing executed by authorized representatives of both parties (a “Change Order”). The foregoing notwithstanding, if Xage, at the request of or with written approval from Customer’s Project Manager, performs work that is not covered by, or that exceeds the scope of Evaluation Services in an Order Form, such work shall be deemed Evaluation Services provided pursuant to this Agreement for which Customer shall compensate Xage on a time and materials basis in accordance with Xage’s then current rates. Xage agrees to notify Customer promptly of any factor coming to its attention that may affect Xage’s ability to meet the requirements of the Evaluation Services in any Order Form, or that is likely to cause any material delay in the performance of the Evaluation Services.

3. License Grant.

3.1. License. Subject to the terms and conditions of this Agreement, Xage hereby grants Customer a nonexclusive, nontransferable, non-sublicensable license during the Evaluation Period at the Evaluation Site to use the Xage Fabric and Hardware (if any) solely for the purpose of Customer’s internal evaluation of the features, functions, performance and capabilities of the Xage Fabric, solely in the Customer Environment as described in an Order Form and solely for Customer’s non-production use (unless otherwise set forth in the applicable Order Form) pursuant to this Agreement and in accordance with the applicable Documentation.

3.2. Technical Support. If Customer has paid fees for the evaluation of the Xage Fabric as set forth on the applicable Order Form, then Xage will use commercially reasonable efforts to provide technical support for the Xage Fabric to such Customer in accordance with Xage’s then-current support terms for paying evaluation customers. Subject to the foregoing, and except for the Evaluation Services (if applicable), Xage has no obligation under this Agreement to provide any maintenance, support or other services relating to the Xage Fabric or Hardware. Customer is solely responsible for taking appropriate measures to back up Customer’s systems and data and all other necessary measures to prevent any file or data loss.

3.3. Restrictions. Customer shall not, and shall not permit others to: (a) modify, correct, adapt, translate, enhance or otherwise prepare derivative works or improvements of the Xage Fabric; (b) reverse engineer, disassemble, decompile, decode or adapt the Xage Fabric, or otherwise attempt to derive or gain access to the source code; (c) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available all or any part of the Xage Fabric or Hardware to any third party; (d) exceed the number of Identities/Sources, Xage Nodes, Xage Brokers , Xage Managers, Xage Enforcement Points or other usage parameters listed on an Order Form; (e) publish any results or findings about Customer’s evaluation or test of the Xage Fabric or disclose its features, functions, performance, errors or bugs to a third party without Xage’s prior written consent (“Findings”); (f) share any Identities/Sources or exploit the Identities/Sources in a manner that results in usage of any Identity/Source beyond its singular grantor (g) remove any copyright or other Intellectual Property Rights notices from the Xage Technology or from third party manufactured Hardware; any violation of the foregoing is a breach of this Agreement. No other right is granted to Customer to use the Xage Fabric, and nothing herein shall be construed as granting, by implication, waiver, estoppel or otherwise to Customer or any third party any Intellectual Property Rights or other right, title, or interest in or to any of the Xage Fabric or Xage’s Confidential Information, In the event that Customer is a division or subsidiary of a larger organization or the affiliate of a smaller organization, additional licenses for evaluation by the Customer’s subdivisions or affiliates must be separately obtained from Xage.

3.4. Feedback. Customer agrees to notify Xage of any errors or deficiencies in the Xage Fabric and may in its sole discretion make suggestions for improvements, compatibility problems, and other information (collectively, “Feedback”). Customer hereby grants Xage a perpetual, irrevocable, non-exclusive, royalty-free, fully-paid-up, fully-transferable, worldwide license (with rights to sublicense through multiple tiers of sublicensees) under all of Customer’s Intellectual Property Rights, for Xage to use and exploit the Feedback in any manner and for any purpose. Customer acknowledges that Xage may use or incorporate Feedback without restriction and without compensation to Customer.

4. Open-Source Components. Any use of Open-Source Components under this Agreement will be governed by, and subject to, the terms and conditions of the applicable open-source license (“Open-Source License”). Xage may identify and describe the Open- Source Components of the Xage Technology on a webpage, in Documentation, README or text files, or by some other reasonable means. Customer may also request Xage to provide a list of the Open-Source Components. Customer agrees to comply with the terms and conditions of the Open-Source Licenses.
5. Delivery, Installation and Acceptance.

5.1. Delivery.  Unless otherwise set forth in an Order Form, all Hardware and other materials specified in the Order Form shall be shipped  Incoterms 2010 Ex Works from Xage’s facility or the facility of its third party manufacturer to Customer or its carrier agent, at which time risk of loss will pass to Customer. In the absence of specific shipping instructions from Customer, Xage will choose the method of shipment in its reasonable discretion. Customer will pay for all freight, insurance, customs, duties, tariffs, and other shipping expenses or other fees relating to the transportation or export or import of the Hardware and other materials.

5.2. Installation. If and as may be set forth in an Order Form, Xage shall install the Xage Fabric and/or Hardware. If installation or other support is to be provided by Xage for the Customer’s systems, Customer shall provide for Xage’s personnel such system and/or facility access as may be necessary to complete the agreed installation and/or support.

5.3. Acceptance. If an acceptance test is set forth in an Order Form, acceptance or rejection of the deliverables relating to Evaluation Services shall be made as promptly as practical, but in no event greater than ten (10) days after delivery unless otherwise set forth in the applicable Order Form. Any deliverable not rejected by Customer in writing and reasonably detailing the reasons for such rejection within such ten (10) day period shall be deemed accepted. Customer may reject a deliverable only if it does not comply in all material respects with the Documentation and any acceptance test set forth in the applicable Order Form. In the event Customer rightfully rejects any deliverable, Xage shall use commercially reasonable efforts to correct any deficiencies or nonconformities and resubmit the rejected items as promptly as possible until the deliverables are accepted. Except as may be otherwise agreed by Xage in a subsequent Order Form, Xage is not responsible for the obsolescence of any deliverable that may result from changes in Customer’s requirements or any future updates, upgrades or modifications to the Xage Technology or Hardware.

6. Payment.

6.1. Fees; Payment. If an Order Form sets forth fees for the Xage Fabric, Hardware and/or Evaluation Services: (a) Customer shall pay Xage in accordance with the amounts and/or rates set forth in the applicable Order Form in accordance with the terms therein and this Section 6.  Xage will invoice Customer for Fees (i) for Xage Fabric license fees, up front beginning on the date Xage first provide Customer access to the Xage portal; (ii) for Evaluation Services, in advance unless otherwise stated in the applicable Order Form; and (iii) for Hardware, on the date that Xage ships such Hardware.  Unless otherwise set forth on the applicable Order Form, fees will be paid within thirty (30) days after the date of invoice, and interest on any late payments will accrue at the rate of 1.5% per month, or the legal maximum, whichever is greater. All fees and other charges payable by Customer relating to this Agreement are exclusive of all federal, state, local, or other taxes, including, without limitation, sales, use, value added, excise and property taxes, or any amounts levied in lieu thereof, based on charges set forth in this Agreement or any Order Form.

6.2. Expenses. In addition to the charges invoiced above, Xage shall invoice Customer monthly for expenses incurred as a result of performing Evaluation Services in accordance with any Order Form. Such expenses shall be limited to reasonable out of pocket expenses necessarily and actually incurred by Xage in the performance of the Evaluation Services. Estimates of the total fees for Evaluation Services may be set forth in an Order Form; provided that, such estimates are not guaranteed. Xage will notify Customer if the estimate will be exceeded, and Customer may, at its option, terminate the applicable Order Form and pay only for Evaluation Services rendered up through the effective date of termination.

7. Ownership.

7.1. Xage Technology. Subject solely to the express license granted by Xage under this Agreement, as between the parties, Xage reserves and retains all right, title and interest in and to the Xage Fabric, any other Xage Software, and Documentation any and all: (a) copies, reproductions, modifications, enhancements, adaptations, implementations, translations and other derivative works thereof; and (b) inventions, improvements, know-how, specifications, performance characteristics, designs, plans, methods, procedures, processes, techniques, software (whether in object or source code), technology, concepts, information or materials whatsoever comprising, relating to, based on or arising out of the Xage Technology; including the sole and exclusive ownership of all Intellectual Property Rights relating thereto. Customer hereby unconditionally and irrevocably assigns to Xage, the entire right, title and interest that Customer may have or acquire in any Xage Technology.

7.2. Confidential Information. Each party has, reserves and retains all right, title and interest in and to its own Confidential Information shared with the other party, including the sole and exclusive ownership of all Intellectual Property Rights relating thereto.

7.3. Open-Source Components. Ownership of all Intellectual Property Rights in Open-Source Components remains with the respective owners thereof, subject to Xage’s and Customer’s respective rights and licenses under the applicable Open-Source Licenses.

7.4  Hardware.  Any Hardware delivered to Customer is only provided to Customer as a bailment for use with the Xage Fabric during the Evaluation Period at the Evaluation Site, and all title or ownership in the Hardware will be retained by Xage.  Customer shall keep the Equipment free from all liens, attachments, encumbrances or judicial processes, and shall immediately notify Xage of any claim, which may be adverse to Xage’s interest in the Hardware.

8. Confidentiality.

8.1. Confidential Information. Customer acknowledges that Xage may disclose or make available to the Customer confidential information and other sensitive or proprietary information and materials such as reference designs, pricing, business affairs, future products/services, customer and prospect lists, know-how, ideas, concepts, designs, drawings, flow charts, diagrams, third-party confidential information and other intellectual property relating to the Xage Technology or subject matter of this Agreement (collectively, “Confidential Information”). Confidential Information also includes the Findings, Feedback, Xage Technology, and the prices charged to the Customer hereunder.

8.2. Use and Disclosure. Customer agrees: (a) not to use Confidential Information other than as strictly necessary to exercise its rights or perform its obligations under this Agreement, including without limitation not to use any of the Confidential Information, in any manner to the detriment of Xage; (b) to maintain Confidential Information in strict confidence and not to disclose any Confidential Information without Xage’s prior written consent, provided, however, that Customer may disclose the Confidential Information to its employee, contractors and agents (“Representatives”) who: (i) have a “need to know” for purposes of any performance, or exercise of any rights with respect to such Confidential Information, under this Agreement; (ii) have been apprised of this restriction; and (iii) are themselves bound by written nondisclosure agreements or obligations at least as restrictive as those set forth in this Section provided, further, that Customer shall be responsible for ensuring its Representatives’ compliance, and shall be liable for any of its Representatives’ noncompliance; and (c) notify Xage in writing immediately of any unauthorized accessing, possession or use of the Confidential Information of which it may become aware and cooperate fully with Xage in any investigation or litigation relating to or arising from any of such unauthorized acts. Customer shall use, and ensure that its Representatives use, reasonable care, at least as protective as the efforts it uses with respect to its own confidential information, to safeguard Confidential Information from use or disclosure other than as permitted hereby.

8.3. Exceptions. If Customer becomes legally compelled to disclose any Confidential Information, it shall: (a) provide prompt written notice to Xage so that Xage may seek a protective order or other appropriate remedy; and (b) disclose only the portion of Confidential Information that it is legally required to produce. If a protective order or other remedy is not obtained, Customer shall use reasonable efforts to obtain assurance that confidential treatment will be afforded the Confidential Information.  Return of Confidential Information is subject to Section 9.3.

9. Term and Termination.

9.1. Term. This Agreement commences as of the Effective Date and will continue in effect for the Evaluation Period unless terminated earlier pursuant to any of the express provisions herein. The parties may extend the Evaluation Period upon mutual written agreement.

9.2. Termination.

9.2.1. Termination for Convenience. If the Customer has not paid any fees for the evaluation of the Xage Fabric, then either party may terminate this Agreement at any time without cause, and without incurring any obligation, liability or penalty by reason of such termination, on giving the other party at least ten (10) days’ prior written notice of such termination. For the avoidance of doubt, if Customer has paid fees for the evaluation of the Xage Technology, then the parties may only terminate this Agreement for cause pursuant to Section 9.2.2 or as otherwise expressly set forth in this Agreement or in the applicable Order Form.

9.2.2. Termination for Cause. Either party may terminate this Agreement effective upon written notice to the other party if the other party breaches this Agreement and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured thirty (30) days after the breaching party receives written notice thereof.

9.3. Effect of Expiration or Termination. Upon the expiration of the Evaluation Period or earlier termination of this Agreement, for any reason, Customer shall: (a) immediately discontinue all use of and permanently erase or cause to be erased from its computer systems, files and storage media all copies of any Xage Technology and other Confidential Information of Xage obtained, made or authorized to be made by Customer or on Customer’s behalf; (b) within ten (10) days after such expiration or termination, return or cause to be returned to Xage  all Hardware provided hereunder; and (c) within ten (10) days after such expiration or termination, return or with Xage’s written approval destroy all copies obtained, made or authorized to be made by Customer or on Customer’s behalf of documents and tangible materials containing, reflecting, incorporating or based on the any Xage Technology or any other Confidential Information of Xage, and certify in writing to the Xage that it has complied with the requirements of this Section 9.3.

9.4. Survival. The rights and obligations of the parties set forth in this Section 9.4 (Survival) and Sections 1 (Definitions), 3.3 (Restrictions), 3.4 (Feedback), 6 (Payment), 7 (Ownership), 8 (Confidentiality), 9.3 (Effect of Expiration or Termination), 10 (Disclaimer of Warranty), 11 (Limitation of Liability), 12 (Indemnification) and 15 (Miscellaneous), and any right, obligation or required performance of the parties in this Agreement which by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.

10. Disclaimer of Warranty.

XAGE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF. ALL XAGE TECHNOLOGY AND HARDWARE IS PROVIDED “AS IS” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, XAGE HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHER, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE, OR THAT ANY XAGE TECHNOLOGY WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE XAGE TECHNOLOGY’S OPERATION WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE OR SUITABLE FOR THE PARTICULAR NEEDS OF CUSTOMER OR ANY INTENDED USER OR THIRD PARTY. CUSTOMER WILL NOT USE OR CAUSE OR PERMIT OTHERS TO USE THE XAGE FABRIC OR HARDWARE, IN WHOLE OR IN PART, TO DEVELOP, DISTRIBUTE, PROVIDE OR USE ANY PRODUCT OR SERVICE THAT COMPETES WITH THE XAGE TECHNOLOGY.

11. Limitation of Liability.

11.1. EXCEPT AS OTHERWISE PROVIDED IN SECTION 11.3, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY OR XAGE’S SUPPLIERS BE LIABLE FOR ANY LOSS OF, DAMAGE TO, OR CORRUPTION OF DATA, LOST PROFITS, BUSINESS, CONTRACTS, REVENUE, PRODUCTION, GOODWILL OR ANTICIPATED SAVINGS, OR BUSINESS INTERRUPTION OR OTHER COMMERCIAL, PERSONAL, ECONOMIC OR OTHER DAMAGES, LOSSES OR INJURY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH XAGE FABRIC, HARDWARE, THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSSES, DAMAGES OR INJURIES AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.

11.2. EXCEPT AS OTHERWISE PROVIDED IN SECTION 11.3, AND NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, IN NO EVENT WILL XAGE’S OR ITS SUPPLIER’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ITS SUBJECT MATTER, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE OF AMOUNTS PAID TO XAGE UNDER THE AFFECTED ORDER FORM OR ONE HUNDRED DOLLARS (USD$100.00), WHICHEVER IS GREATER.

11.3. THE EXCLUSIONS OF DAMAGES AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 11 DO NOT APPLY TO A PARTY’S VIOLATION OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS OR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

 

12. Indemnification. Customer shall defend, indemnify and hold harmless Xage and its officers, directors, employees, shareholders, customers, agents, successors and assigns from and against any and all loss, damage, settlement, costs or expense (including legal expenses and expenses of other professionals), resulting from, or arising out of any third party claim related to Customer’s acts or omissions or which alleges that the Customer Environment: (a) has caused or contributed to bodily injury, death or damage to property; (b) violates any applicable laws or rights of privacy; or (c) infringes upon, misappropriates or violates any third party Intellectual Property Right.  Xage shall prompt notify Customer in writing of any such claims, give Customer sole control of the defense thereof and any related settlement negotiations, and at Customer’s reasonable request and expense, cooperate and assist in such defense.  Under no circumstances shall Customer enter into any settlement that involves an admission of liability, negligence or other culpability of Xage or requires Xage to contribute to the settlement without Xage’s prior written consent.  Xage may participate and retain its own counsel at its own expense.

 

13. Export. Customer acknowledges that the laws and regulations of the United States may restrict the export and re-export of certain commodities and technical data of United States origin, including components of the Xage Fabric or Hardware. Customer agrees that it will not export or re-export any Xage Fabric or Hardware without the appropriate United States or foreign government licenses. Without limiting the foregoing, (i) Customer represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not permit access or use of the Xage Fabric or Hardware in violation of any U.S. export embargo, prohibition or restriction.
14. Government End Users. The Xage Fabric is a “commercial computer software” product as that term is described in DFAR 252.227-7014(a)(1). If Customer is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Xage Fabric, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 and 12.11 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Xage Fabric was developed fully at private expense. All other use is prohibited
15. Miscellaneous. (a) The relationship of the parties hereto are independent contractors, and neither party is an employee, agent, partner or joint venturer of the other. (b) This Agreement shall be governed by and construed under the law of the State of California without regard to conflict of laws provisions. The federal and state courts of Santa Clara County, California shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of this Agreement. Each party hereto expressly consents to the personal jurisdiction of the courts of California and service of process being effected upon it by registered mail sent to the address set forth at the beginning of this Agreement. (c) This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof and merges all prior discussion between them. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless set forth in writing signed by officers of both parties hereto. (d) Any notice required or permitted by this Agreement will be in writing and will be sent by prepaid, registered or certified mail, return receipt requested, addressed to the other party at the address shown at the beginning of this Agreement or at such other address for which such party gives notice hereunder. Such notice will be deemed to have been given when delivered or, if delivery is not accomplished by some fault of the addressee, when tendered. (e) Customer may not transfer or assign its rights or obligations under this Agreement without the prior written consent of Xage. Subject to the foregoing sentence, this Agreement will be binding upon and inure to the benefit of the parties hereto, their successors and assigns. (f) If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect. The parties agree to renegotiate in good faith any term held invalid and to be bound by the mutually agreed substitute provision. (g) The failure of either party to enforce at any time any of the provisions of the Agreement, or the failure to require at any time performance by the other party of any of the provisions of this Agreement, will in no way be construed to be a present or future waiver of such provisions, nor in any way affect the validity of either party to enforce each and every such provision thereafter. (h) This Agreement may be executed in two or more counterparts, each of which will be deemed an original and all of which together will constitute one instrument.