Nipper Resilience EULA

Nipper Resilience End User License Agreement

Pursuant to a purchase order (the “Order”), you have purchased a license to use Nipper Resilience (the “Software”), which is owned by Titania Ltd (“Titania”). This End User License Agreement (this “Agreement”) specifies the terms under which you and your Authorized Users (as defined below) may access and use the Software.

Please read this EULA carefully before accessing and using the Software. BY CHECKING THE BOX INDICATING YOUR CONSENT TO THIS AGREEMENT AND/OR BY ACCESSING AND USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DID NOT CHECK THE BOX INDICATING YOUR CONSENT TO THIS AGREEMENT OR IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SOFTWARE OR ANY PORTION THEREOF UNDER ANY CIRCUMSTANCES.

IF YOU ARE ACCEPTING OR CONSENTING TO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT COMPANY OR OTHER LEGAL ENTITY AND, IN SUCH EVENT, “YOU” WILL REFER AND APPLY TO THAT COMPANY OR OTHER LEGAL ENTITY.

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Titania and you (“you” or “Licensee”) hereby agree as follows:

1) DEFINITIONS. The definitions for some of the defined terms used in this Agreement are set forth below. The definitions for other defined terms are set forth elsewhere in this Agreement.

1.1) “Affiliate” means any Person that, directly or indirectly, Controls, is Controlled by, or is under common Control with, a specified Person.

1.2) “Applicable Law” means any applicable national, federal, state, county, and local law, ordinance, regulation, rule, code, and order.

1.3) “Authorized Users” mean Licensee’s employees and Contractors whom Licensee authorizes to access and use the Software; provided, however, that any Contractors’ access to and use of the Software will be limited to their provision or receipt of services to or from Licensee.

1.4) “CMDB” means a configuration management database that contains all relevant information about Licensee’s network’s routers, switches, cloud configurations, and firewalls and the relationships between those components

1.5) “Confidential Information” means each Party’s business and technical information in any form, including without limitation, the Software, Licensee Data, business and marketing plans, strategies, sales, product and financial data and projections, processes, techniques, trade secrets, know how, inventions, processes (business, technical, or other), designs, algorithms, source code, customer lists, and the terms of this Agreement. Confidential Information does not include information or data which is: (i) known to the Party receiving the Confidential Information (the “Receiving Party”) prior to its receipt from the other Party (the “Disclosing Party”) without a limitation or obligation of confidentiality under another agreement; (ii) independently developed by the Receiving Party without use of any Confidential Information; (iii) generally known to the public at the time of disclosure other than as a result of disclosure by the Receiving Party; or (iv) received from a third party with a legal or contractual right to disclose such information or data.

1.6) “Configuration Files” means the configuration files related to Licensee’s network.

1.7) “Contractor” means any third party that is under contract to provide services to Licensee.

1.8) “Control” or “controls” and the formatives “controlling” and “controlled” mean the possession, directly or indirectly, of fifty percent (50%) or more of the equity interests of another Person or the power otherwise to direct or cause the direction of the management and policies of such other Person, whether through ownership of voting securities, by contract, or otherwise.

1.9) “Documentation” means any documentation (whether in hard copy, electronic, or digital form) that Titania makes available to provide guidance and instruction regarding the operation, maintenance, and use of the Software.

1.10) “Fees” mean the Licensee Fees and the Professional Services Fees, collectively.

1.11) “Intellectual Property Rights” mean all intellectual and industrial property rights, whether now existing or existing in the future, including without limitation, (i) all patent rights, including any rights in pending patent applications and any related rights; (ii) all copyrights and other related rights throughout the world in works of authorship, including all registrations and applications therefor; (iii) all trademarks, service marks, trade dress, or other proprietary trade designations, including all registrations and applications therefor; (iv) all rights throughout the world to proprietary know-how, trade secrets, and other Confidential Information, whether arising by law or pursuant to any contractual obligation of non-disclosure; and (v) all other rights covering industrial or intellectual property recognized in any jurisdiction.

1.12) “Licensee Data” means the Configuration Files and any and all data Processed in the Software’s production environment in connection with the Authorized Users’ use of the Software and excludes all other data (e.g., non-production, test, or dummy data) in any other environments (e.g., development, test, pre-production, or break-fix).

1.13) “License Fees” mean the fees due to Titania for the license to the Software.

1.14) “Malicious Code” means any computer virus, Trojan horse, worm, time bomb, or other similar code or hardware component designed to disable, damage, or disrupt the operation of, permit unauthorized access to, erase, destroy, or modify any software, hardware, network, or other technology.

1.15) 1.15 “Person” means an individual, partnership, corporation, limited liability company, trust, joint venture, association, unincorporated organization, government agency, or political subdivision thereof or other entity.

1.16) “Personal Data” means any information that falls within the definition of “personal information,” “personal dat,” or “personally identifiable information” as defined under any Applicable Law or any information that can be used to identify, contact, or precisely locate a natural person.

1.17) “Process” means any act or practice in connection with, or processing applied to, any Personal Data, and includes the collection, use, handling, disclosure, or storage of, or the granting of access rights to, Personal Data, and “Processing” has a corresponding meaning.

1.18) “Professional Services” mean development, migration, integration, testing, conversion, consulting, or other services and deliverables related to the Software, as further described in the applicable Statement of Work.

1.19) “Professional Services Fees” mean the fees due to Titania for the Professional Services, as set forth in the applicable Statement of Work.

1.20) “Services” mean the Support Services and the Professional Services, collectively.

1.21) “Software” means Titania’s proprietary Nipper Resilience software and any Updates thereto.

1.22) “Statement of Work” means a statement of work executed by the Parties in connection with Titania’s provision of Professional Services.

1.23) “Updates” mean any error correction, bug fix, patch, enhancement, update, new version, release, revision, or other modification to the Software that Titania generally makes available to its other customers at no additional cost in the performance of the Support Services. Upon delivery to Licensee, Updates shall be considered part of the Software.

2) LICENSE TERMS.

2.1) License Grant. In exchange for the License Fee and subject to the terms and conditions of this Agreement, including, without limitation, any restrictions or limitations set forth in the Order (e.g., number of assessments or devices), Titania hereby grants to Licensee a non-exclusive, non-assignable (except as provided in Section 11.3), royalty free, worldwide license during the Term (as defined below) to (i) install, load, store, display, and permit Authorized Users to use the Software; and (ii) reproduce and make a reasonable number of copies of the Software for installation, backup, disaster recovery, and archival purposes solely as necessary to exercise the license and rights granted in clause (i) above; in each instance for Licensee’s internal business purposes and in accordance with the terms and conditions of this Agreement. Licensee shall be responsible for establishing the CMDB with a third-party provider, and unless set forth in the Order, sending the Configuration Files to the CMDB and authorizing Titania to access the CMDB and Configuration Files via an API feed with such third-party provider. Licensee is responsible for the acts and omissions of its Authorized Users and any other Person who accesses and uses the Software using any of Licensee’s or its Authorized Users’ access credentials.

2.2) Provision of Services. Titania shall perform support and provide Updates in accordance with and pursuant to its Support Terms, which are hereby incorporated by reference (the “Support Services”). From time to time, Titania may develop new products, services, and premium features that have an additional cost. These capabilities may be presented to Licensee as options available for inclusion in an addendum to this Agreement. In the event Licensee desires to have Titania provide integration, custom development, or other Professional Services outside the scope of this Section, such Professional Services will be governed by Section 3.

2.3) Access to Documentation. Titania shall provide Licensee access to the Documentation, as may be updated from time to time in order to reflect any Updates. Licensee may print copies of, use, and permit its Authorized Users to use, the Documentation solely in connection with the use of the Software.

2.4) Restrictions on Use. Licensee shall not (and shall not authorize or knowingly permit any Authorized User or third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code, algorithms, file formats, or interface protocols of the Software or of any files contained therein; (ii) copy, modify, adapt, or translate the Software or otherwise make any use, resell, distribute, or sublicense the Software other than in accordance with this Agreement; (iii) make the Software available on a “service bureau” basis; (iv) remove or modify any proprietary markings or restrictive legends placed on the Software or the Documentation; or (v) use the Software in violation of any Applicable Law.

2.5) Title. As between Titania and Licensee: (i) Titania retains all right, title, and interest, including, without limitation, all Intellectual Property Rights, in and to Software, the Documentation, and any other materials provided by Titania hereunder, and Licensee shall have no rights with respect to the same other than those license rights expressly granted under this Agreement; and (ii) Licensee retains all right, title, and interest, including, without limitation, all Intellectual Property Rights, in and to the Licensee Data, and Titania shall have no rights with respect to the same other than those license rights expressly granted under this Agreement.

2.6) Modifications; No Contingency for Future Commitments. Titania may, in its sole discretion, modify the Software from time to time by adding, deleting, or modifying features to improve the user experience; provided, however, that during the Term, such additions, deletions, or modifications to features: (i) will not materially decrease the overall functionality of the Software; and (ii) will be described by Titania through updates to the Documentation. Unless otherwise expressly agreed by the Parties in writing, Licensee agrees that payment of the Fees under this Agreement is not contingent on the delivery of any future Software functionalities or features or any other future commitments, except as expressly set forth in this Agreement.

3) PROFESSIONAL SERVICES.

3.1) Statements of Work. Licensee may elect to have Titania provide Professional Services. All such Professional Services will be covered by one or more Statements of Work agreed on by the Parties. The work covered by a particular Statement of Work will be referred to in this Agreement as a “Project.” Each Statement of Work will be in writing, signed by an authorized representative of each Party, will reference this Agreement, and will specify for the Project covered by that Statement of Work: (i) a Project contact for each Party; (ii) a description of the Project, including any applicable specifications, milestones, and deliverables to be developed (“Deliverables”); and (iii) the Professional Services Fees. For the avoidance of doubt and as set forth in Section 2.2, any Licensee requests for services that are outside the scope of services described in Section 2.2, are subject to Titania’s approval and execution of a Statement of Work.

3.2) Ownership of Deliverables and Work Product. Unless otherwise set forth in a Statement of Work, Titania shall own all right, title, and interest, including, without limitation, all Intellectual Property Rights, in and to all Deliverables and other work product created by Titania in the performance of the Professional Services; provided, however, that upon the full payment of the applicable Professional Services Fees, any Deliverables shall be considered part of the Software hereunder.

4) FINANCIAL TERMS; AUDITS.

4.1) Fees. The License Fees are set forth in the Order. The Professional Services Fees are set forth in the applicable Statement of Work. All Fees are non-cancelable, and, unless otherwise set forth herein, non-refundable.

4.2 Taxes.

(a) All amounts payable under this Agreement are exclusive of sales and use taxes, value added taxes, and all other taxes and duties (except for any taxes on Titania’s net income, which shall be paid by Titania), the costs of which such taxes and duties shall be invoiced by Titania and paid by Licensee in accordance with Section 4.3.

(b) If the Licensee is required by or under any laws or regulations to make any withholding or deduction, Titania agrees to take commercially reasonable steps to: (i) avoid the withholding or deduction, (ii) provide exemption certificates if applicable, and (iii) otherwise act to mitigate the withholding or deduction. If any withholding or deduction is required notwithstanding such efforts, Licensee shall gross up its payment to Titania as is necessary to ensure that Titania receives the full amount payable under this Agreement as if no such withholding or deduction had been made, subject to the tax savings provision of this Section.

4.3) Payments. Titania shall invoice Licensee as follows: (i) for the License Fees and any applicable taxes, as set forth in the Order; and (ii) for the Professional Services Fees and any applicable taxes, unless otherwise set forth in the applicable Statement of Work, monthly in arrears. Unless otherwise set forth in the Order or applicable Statement of Work, Licensee shall pay such invoices within thirty (30) days from the date that the invoices are deemed to be given under Section 11.1. Except as otherwise expressly provided in this Agreement, Licensee shall not be entitled by reason of any set-off, counter-claim, or other similar deduction to withhold payment of any amount due to Titania.

4.4) Late Payments. Undisputed payments that are past due shall accrue interest at the lesser of one and one half percent (1.5%) per month, or the maximum rate permitted by law. Titania shall be entitled to recover all reasonable costs of collection (including reasonable attorneys’ fees, expenses, and costs) incurred in attempting to collect undisputed payments from Licensee that are more than sixty (60) days delinquent. Payments from Licensee that are more than thirty (30) days delinquent shall constitute a material breach of this Agreement.

4.5) Reporting; Audits. On the periodic basis set forth in the Order, Licensee shall provide Titania the reports generated by the Software to measure Software usage. Upon Titania’s written request, but no more than once per year during the Term of this Agreement, Licensee will provide Titania with a written certification, signed by an executive of Licensee, that Licensee is in full compliance with any applicable usage limitations (e.g., number of assessments or devices) and the other provisions of this Agreement. In addition, at any time during the Term of this Agreement and for one (1) year thereafter, Titania (upon at least ten (10) business days prior, written notice to Licensee and during normal business hours, but no more than once per year) will have the right to have its employees, accountants, and/or auditors audit Licensee’s compliance with this Agreement. Licensee will provide Titania with access to user logs and other information and systems as may be reasonably requested by Titania in connection with such audit. If an audit reveals that Licensee has exceeded any usage limitation or otherwise is not using the Software in compliance with this Agreement, then Licensee will bear the expense of such audit. Licensee will promptly remedy (including, if applicable, through the payment of additional Fees) any non-compliance with this Agreement that is revealed through such audit.

5) TERM AND TERMINATION.

5.1) Term. The term of this Agreement begins on the Effective Date and shall continue for the period set forth in the Order (the “Term”).

5.2) Termination.

(a) In the event of a material breach of this Agreement by a Party, the other Party may terminate this Agreement by giving thirty (30) days prior, written notice to the breaching Party; provided, however, that this Agreement shall not terminate if the breach is curable and the breaching Party has cured the breach before the expiration of such thirty (30) day period.

(b) This Agreement is terminable immediately without notice by a Party if the other Party commits a material breach of this Agreement and the breach is not curable or if the other Party: (i) voluntarily institutes insolvency, receivership, or bankruptcy proceedings; (ii) is involuntarily made subject to any bankruptcy or insolvency proceeding and such proceeding is not dismissed within ninety (90) days of the filing of such proceeding; (iii) makes an assignment for the benefit of creditors; or (iv) undergoes any dissolution or cessation of business.

(c) Titania may terminate this Agreement upon written notice to Licensee under the limited circumstances set forth in Section 8.3 and Section 11.3 below.

5.3) Effect of Termination or Expiration. In the event of any termination or expiration of this Agreement: (i) Licensee shall pay Titania for all amounts payable hereunder as of the effective date of termination or expiration; (ii) all rights and licenses granted hereunder to Licensee shall immediately cease, and Licensee and its Authorized Users shall immediately cease all access to and usage of the Software and the Documentation; and (iii) each Receiving Party shall either return to the Disclosing Party, or, at the Disclosing Party’s direction, destroy and provide the Disclosing Party with written certification of the destruction of, all documents, computer files, and other materials containing any Confidential Information of the Disclosing Party that are in the Receiving Party’s possession, custody, or control; provided, however, that each Receiving Party may keep a copy of such Confidential Information for legal and/or regulatory purposes and/or as part of any electronic archival back-up system.

5.4) Survival. The following provisions shall survive any termination or expiration of this Agreement: Section 1 (“Definitions”), Section 2.5 (“Title”), Section 3.2 (“Ownership of Deliverables and Work Product”), Section 4 (“Financial Terms; Audits”) until all monies due have been paid in full and as otherwise set forth in such section, Section 5.3 (“Effect of Termination or Expiration”), Section 6 (“Confidentiality, Data, and Feedback”), Section 7.3 (“Disclaimer”), Section 8 (“Indemnification”), Section 9 (“Limitation of Liability”), Section 11 (“General Provisions”), and this Section 5.4 (“Survival”).

6) CONFIDENTIALITY, DATA, AND FEEDBACK.

6.1) Use and Disclosure of Confidential Information. The Receiving Party shall, with respect to any Confidential Information of the Disclosing Party: (i) use such Confidential Information only in connection with the Receiving Party’s performance of its obligations and exercise of its rights under this Agreement; (ii) subject to Section 6.3 below, restrict disclosure of such Confidential Information to only those employees, consultants, and subcontractors of the Receiving Party who have a need to know such Confidential Information in connection with the Receiving Party’s performance of its obligations and exercise of its rights under this Agreement; and (iii) except as expressly contemplated under the preceding clause (ii), not disclose such Confidential Information to any third party unless authorized in writing by the Disclosing Party to do so.

6.2) Protection of Confidential Information. The Receiving Party shall protect the confidentiality of any Confidential Information disclosed by the Disclosing Party using at least the degree of care that it uses to protect its own confidential information (but no less than a reasonable degree of care).

6.3) Compliance by Personnel. The Receiving Party shall, prior to providing any employee, consultant, or subcontractor access to any Confidential Information of the Disclosing Party, inform such employee, consultant, or subcontractor of the confidential nature of such Confidential Information and require such employee or consultant to comply with the Receiving Party’s obligations hereunder with respect to such Confidential Information. Subject to Section 8 and Section 9, the Receiving Party shall be responsible to the Disclosing Party for any violation of this Section 6 by any such employee, consultant, or subcontractor.

6.4) Required Disclosures. In the event the Receiving Party becomes or may become legally compelled to disclose any Confidential Information (whether by deposition, interrogatory, request for documents, subpoena, civil investigative demand or other process or otherwise), the Receiving Party shall provide to the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. In the event that such protective order or other remedy is not obtained, or that the Disclosing Party waives compliance with the provisions hereof, the Receiving Party shall furnish only that portion of the Confidential Information which it is advised by counsel is legally required to be disclosed, and shall use commercially reasonable efforts to insure that confidential treatment shall be afforded such disclosed portion of the Confidential Information.

6.5) Use of Licensee Data. Notwithstanding anything to the contrary contained in this Agreement, Titania may: (i) during the Term, use any Licensee Data to perform its obligations hereunder and operate, maintain, and improve the Software and the Services; and (ii) both during and after the Term, provided that Titania anonymizes any and all such data so that Licensee is not identified, merge such anonymized data with other data, and use such anonymized data for its reporting, planning, development and promotional purposes and to improve the Software, the Services, and its other products and services. Titania shall comply with its obligations under Applicable Laws in respect of Licensee Data Processed by it in connection with this Agreement.

6.6) Irreparable Injury. Each Party acknowledges that the other Party may be irreparably harmed by any breach of this Section, and agrees that such other Party may seek, in any court of appropriate jurisdiction, an injunction and/or any other equitable relief necessary to prevent or cure any such actual or threatened breach thereof, without the necessity of proving monetary damages or posting a bond or other security. The preceding sentence shall in no way limit any other legal or equitable remedy, including monetary damages, that the non-breaching Party would otherwise have under or with regard to this Agreement.

6.7) Feedback. During the Term, Licensee may elect to provide Titania with feedback, comments, and suggestion with respect to the Software and/or the Services (“Feedback”). Licensee agrees that Titania shall be free to use, reproduce, disclose, and otherwise exploit any and all such Feedback without compensation or attribution to Licensee.

7) REPRESENTATIONS AND WARRANTIES; DISCLAIMER.

7.1) Mutual Representations and Warranties. Each Party represents and warrants that: (i) this Agreement constitutes its valid and binding obligation and is enforceable against it in accordance with the terms of this Agreement; and (ii) the execution and delivery of this Agreement by it and the performance of its obligations and exercise of its rights hereunder will not conflict with or violate any Applicable Law.

7.2) Representations and Warranties of Titania. In addition to the representations and warranties set forth in Section 7.1, Titania represents and warrants that: (i) Titania shall use commercially reasonable efforts to ensure that the Software will not contain any Malicious Code; and (ii) all Services shall be performed in a professional and workmanlike manner.

7.3) Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1 AND SECTION 7.2, THE SERVICES, THE SOFTWARE, THEIR COMPONENTS, ANY UPDATES, THE DOCUMENTATION, THE DELIVERABLES, AND ANY OTHER MATERIALS PROVIDED HEREUNDER, ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND NEITHER PARTY MAKES ANY WARRANTIES IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE SOFTWARE WILL OPERATE ERROR-FREE OR UNINTERRUPTED, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. To the extent that a Party may not as a matter of Applicable Law disclaim any warranty, the scope and duration of such warranty shall be the minimum permitted under such law.

8) INDEMNIFICATION.

8.1) Indemnification by Titania. Subject to Section 8.2, Titania shall defend, indemnify, and hold harmless Licensee and its officers, directors, managers, and employees from any and all liabilities, losses, fines, penalties, costs, and expenses, including reasonable attorneys’ fees (collectively, “Losses”) incurred by them in connection with any third-party claim, action, or proceeding (each, a “Claim”): (i) arising from Titania’s gross negligence or willful misconduct; (ii) arising from Titania’s breach of Section 6; and/or (iii) alleging that the use of the Software in accordance with this Agreement infringes, violates, or misappropriates any third-party Intellectual Property Rights.

8.2) Exceptions to Titania Indemnification Obligations. Titania shall not be obligated to indemnify, defend, or hold harmless the parties set forth in Section 8.1 to the extent that the Claim arises from: (i) use of the Software in combination with modules, apparatus, hardware, software, or services not provided by Titania; (ii) use of the Software in a manner that breaches this Agreement or any Applicable Law; or (iii) the alteration or modification of the Software by a party other than Titania.

8.3) Infringement Claims. In the event that Titania reasonably determines that the Software is likely to be the subject of a Claim of infringement, violation, or misappropriation of third-party Intellectual Property Rights, Titania shall have the right (but not the obligation), at its own expense and option, to: (i) procure for Licensee the right to continue to use the Software as set forth hereunder; (ii) replace the infringing components of the Software with other components with the same or similar functionality that are reasonably acceptable to Licensee; or (iii) suitably modify the Software so that they are non-infringing and reasonably acceptable to Licensee. If none of the foregoing options is available to Titania on commercially reasonable terms, Titania may terminate this Agreement without further liability to Licensee, in which case Titania shall promptly provide Licensee with a pro-rata refund of any License Fees paid, but not used, by Licensee. This Section 8.3, together with the indemnity provided under Section 8.1, states Licensee’s sole and exclusive remedy, and Titania’s sole and exclusive liability, regarding infringement, violation, or misappropriation of any Intellectual Property Rights of a third party.

8.4) Indemnification by Licensee. Licensee shall defend, indemnify, and hold harmless Titania, its Affiliates, and its and its Affiliates’ respective officers, directors, managers, and employees from any and all Losses incurred by them in connection with any Claim: (i) arising from Licensee’s gross negligence or willful misconduct; (ii) arising from Licensee’s breach of its representations and warranties hereunder and/or Section 6; (iii) alleging that the use of the Licensee Data in accordance with this Agreement infringes, violates, or misappropriates any third-party Intellectual Property Rights; and/or (iv) arising from any Authorized User’s use of the Software in violation of this Agreement.

8.5) Procedure for Handling Indemnification Claims. In the event of any Claim for which indemnification is available, the indemnified Party shall give prompt written notice of any such Claim to the indemnifying Party; provided, however, that the failure of the Party seeking indemnification to give timely notice hereunder will not affect rights to indemnification hereunder, except to the extent that the indemnifying Party demonstrates actual damage caused by such failure. The indemnifying Party shall have the right to control and direct the investigation, defense, and settlement of each such Claim. The indemnified Party shall reasonably cooperate with the indemnifying Party (at the indemnifying Party’s sole cost and expense) in connection with the foregoing. The indemnified Party may participate in the defense of the Claim with counsel of its own choosing, at its own cost and expense, on a strictly monitoring basis. The indemnifying Party shall not enter into any settlement or resolution of any Claim that would constitute an admission of guilt or liability on the part of the indemnified Party, without the indemnified Party’s express prior written consent (such consent not to be unreasonably withheld, conditioned, or delayed).

9) LIMITATION OF LIABILITY.

9.1) Liability Exclusion. SUBJECT TO SECTION 9.3, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM SUCH OTHER PARTY’S RIGHTS) FOR CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS, LOSS OF USE, OR LOSS OF GOODWILL OR REPUTATION) WITH RESPECT TO ANY CLAIMS BASED ON CONTRACT, TORT, OR OTHERWISE (INCLUDING NEGLIGENCE AND STRICT LIABILITY) ARISING OUT OF THIS AGREEMENT, REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.

9.2) Limitation of Damages. SUBJECT TO SECTION 9.3, EACH PARTY’S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED THE AGGREGATE AMOUNT OF THE FEES PAID AND PAYABLE TO TITANIA BY CUSTOMER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM ARISES.

9.3) Exceptions. NOTWITHSTANDING THE FOREGOING, THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN SECTION 9.1 AND SECTION 9.2 SHALL NOT APPLY TO: (i) A PARTY’S INDEMNIFICATION OBLIGATIONS; PROVIDED, HOWEVER, THAT TITANIA’S LIABILITY UNDER SECTION 8.1(II) AND SECTION 8.1(III) SHALL BE CAPPED, IN THE AGGREGATE, AT ONE MILLION UNITED STATES DOLLARS (USD$1,000,000); (ii) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; OR (iii) LICENSEE’S FAILURE TO PAY ANY UNDISPUTED SUMS DUE HEREUNDER OR BREACH OF SECTION 2.4.

10) GOVERNMENT USE.

10.1) U.S. Government as Licensee. This Section 10 applies whenever Licensee is the U.S. federal government, or any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement, or other activity with the U.S. federal government. In such case, the terms and conditions of this Section shall pertain to Licensee’s use and disclosure of the Software and Documentation and shall supersede any conflicting contractual terms or conditions.

10.2) Commercial Computer Software. The Software and the Documentation are “Commercial computer software” and documentation within the meaning of the applicable acquisition regulations (e.g., FAR 2.101). The Software and Documentation are works with all rights reserved to Titania under the copyright laws of England and the United States.

10.3) Exceptions for U.S. Government. Section 8.4 and Section 11.6 of this Agreement shall not apply to the U.S. federal government, but shall continue to apply to prime contractors and subcontractors of the U.S. federal government. Disputes with the U.S. federal government shall be subject to resolution to the Contract Disputes Act of 1978, as amended. All other provisions of this Agreement remain in effect as written.

11) GENERAL PROVISIONS.

11.1) Notices. Unless otherwise specified herein, all notices and other communications between the Parties (other than routine operational communications) required or permitted by this Agreement or by Applicable Law, will be deemed properly given, if given by: (i) personal service; (ii) registered or certified mail, postage prepaid, return receipt requested; or (iii) nationally or internationally recognized private courier service to the respective addresses of the Parties set forth above or such other address as the respective Parties may designate by like notice from time to time. Notices so given shall be effective upon: (a) receipt by the Party to which notice is given; or (b) on the fifth (5th) business day following mailing, whichever occurs first.

11.2) Relationship of the Parties. Each Party is an independent contractor of the other Party. Nothing herein shall constitute a partnership between or joint venture by the Parties, or constitute either Party the agent of the other.

11.3) Assignment. Neither Party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of the other Party; provided, however, that each Party may, upon written notice to the other Party and without the consent of the other Party, assign or otherwise transfer this Agreement: (i) to any of its Affiliates; or (ii) in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise); provided, further, however, that if Titania objects to any such assignment in subsection (i) or (ii), it may terminate this Agreement on thirty (30) days’ written notice to Licensee. Any assignment or other transfer in violation of this Section shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.

11.4) Publicity. During the Term, Titania shall have the right, but not the obligation, to: (i) publicly announce in any and all media now known or hereafter devised that Licensee is a customer of Titania and a user of the Software; and (ii) use Licensee’s trademarks, service marks, and trade names, in any and all media now known or hereafter devised, in accordance with any guidelines provided by Licensee, to promote Titania and/or the Services.

11.5) Force Majeure. Neither Party shall be liable for any failure or delay in the performance of its obligations under this Agreement to the extent such failure or delay or both is caused, directly or indirectly, without fault by such Party, by any reason beyond its reasonable control, including but not limited to, fire, flood, earthquake, elements of nature or acts of God, acts of state, acts of war, terrorism, riots, civil disorders, rebellions, revolutions, quarantines, pandemics, embargoes, and other similar governmental action (each a “Force Majeure Event”). Any Party so delayed in its performance will promptly notify the other by telephone or by the most timely means otherwise available (to be confirmed in writing within two (2) business days of the inception of such delay) and describe in reasonable detail the circumstances causing such delay. In such event, the performance times shall be extended for a period of time equivalent to the time lost because of the excusable delay; provided, however, if the delay or failure continues for more than thirty (30) consecutive days, the Party not relying on the excusable delay may terminate this Agreement upon written notice to the other Party. In order to avail itself of the relief provided in this Section, a Party must act with due diligence to remedy the cause of, or to mitigate or overcome, such delay or failure.

11.6) Governing Law, Venue. The validity, interpretation, and performance of this Agreement shall be governed by the laws of England and Wales without giving effect to the conflicts of laws provisions thereof. Any disputes, controversies, or claims in connection with or arising out of this Agreement, its negotiation, breach, existence, validity, or termination, shall proceed in the courts located in England and Wales. Each Party hereby irrevocably submits to the exclusive jurisdiction of such courts. Each Party irrevocably waives, to the fullest extent permitted by Applicable Law, any objection to the laying of venue in such courts of any legal action or proceeding arising out of or relating to this Agreement and any claim that any such action or proceeding has been brought in an inconvenient forum. Service of process shall be made in any manner allowed by Applicable Law.

11.7) Modification. No modification of or amendment to this Agreement shall be effective unless in writing signed by authorized representatives of both Parties.

11.8) No Waiver. The rights and remedies of the Parties to this Agreement are cumulative and not alternative. No waiver of any rights is to be charged against any Party unless such waiver is in writing signed by an authorized representative of the Party so charged. Neither the failure nor any delay by any Party in exercising any right, power, or privilege under this Agreement shall operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege shall preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege.

11.9) Severability. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect, and, if legally permitted, such offending provision will be replaced with an enforceable provision that as nearly as possible effects the Parties’ intent.

11.10) Entire Agreement. This Agreement, the Order, the Terms and Conditions, and any executed Statements of Work contain the entire understanding of the Parties with respect to the subject matter hereof and supersede all prior agreements and commitments with respect thereto. There are no other oral or written understandings, terms, or conditions, and neither Party has relied upon any representation, express or implied, not contained in this Agreement. In the event of any conflict between any terms or conditions contained in this Agreement, any Statement of Work, the Order, or the Terms and Conditions, the following agreements and documents shall control in the following order of descending precedence: (i) the body of this Agreement; (ii) the Order; (iii) the applicable Statement of Work; and (iv) the Terms and Conditions. Notwithstanding the foregoing, provisions of this Agreement may be modified in the Order or a Statement of Work, solely for the purposes of that Order or Statement of Work, only by an express statement specifically identifying the Section(s) of this Agreement to be modified.