Software License Agreement
IF YOU LIVE IN THE UNITED STATES, THIS AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IT AFFECTS YOUR RIGHTS ABOUT HOW TO RESOLVE ANY DISPUTE WITH QUIKBOX. PLEASE READ IT.
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT ("AGREEMENT") CAREFULLY BEFORE USING THE QUIKBOX SOLUTIONS SOFTWARE. BY USING THE QUIKBOX SOFTWARE YOU ("LICENSEE") ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE.
IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE YOU MAY RETURN THE SOFTWARE OR HARDWARE CONTAINING THE SOFTWARE FOR A FULL REFUND TO YOUR PLACE OF PURCHASE.
SOFTWARE LICENSE AGREEMENT
1. DEFINITIONS. The following capitalized terms shall have the following meanings whenever used in this Agreement.
1.1. "Authorized User" means an employee or a contractor of Licensee who is authorized to use the Licensor Software provided hereunder.
1.2. "Documentation" means the Software's standard user manual and any and all manuals, instructions and other documents and materials that QuikBox provides or makes available to Licensee in any form or medium which describe the functionality, components, features or requirements of the Software, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
1.3. "Effective Date" This Agreement shall be effective upon the earlier of installation or first use of the Software.
1.4. "Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
1.5. "Licensee Hardware" means hardware whether purchased or provided to Licensee by Licensor on which the Software is used.
1.6. "Permitted Use" means use of the Software by an Authorized User for the benefit of Licensee in the ordinary course of its internal business operations.
1.7. "Software" means the software licensed in object code format, together with any Updates provided to Licensee pursuant to this Agreement.
1.8. "Specifications" means QuikBox's standard specifications for the Software set forth in its Documentation on the Effective Date.
1.9. "Subscription Term" means the length of time for which the maintenance subscription is purchased. The Subscription Term is listed on QuikBox's price list, or quote.
1.10. "Term" is defined in Section 10.1 below.
1.11. "Update" means minor enhancements and bug fixes to the Software.
2. LICENSES & DELIVERY.
2.1. License. QuikBox hereby grants Licensee a nonexclusive license to use the Software solely for Licensee's internal business purposes, provided Licensee complies with the restrictions set forth herein. QuikBox reserves all rights not expressly granted to Licensee. The rights granted are limited to the Software and do not include any other patent or Intellectual Property Rights. QuikBox retains ownership of the Software. If the Software has been licensed for evaluation use only, Licensee may not use the Software in a production environment, or beyond the term of the demo license.
2.2. Permitted Uses. This Agreement allows Licensee to use the Software only on the single QuikBox labeled hardware device on which the Software was delivered or on other Licensee Hardware which meets the requirements set forth in the Software specification. In addition, use of the Software shall also be limited, as applicable and as set forth in QuikBox's price list, quote, user documentation, or web site, to a maximum number of (a) seats (i.e. users with access to install Software); (b) concurrent users, sessions, ports, and/or issued and outstanding IP addresses; and/or (c) central processing unit cycles or instructions per second. A limited license allows Licensee to use the Software only for the licensed number of instances and licensed sizes.
2.3. Restrictions on Software Rights. Licensee shall not: (a) modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense the Software; (b) use the Software for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Software; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the Software's source code; (d) make copies of the Software, other than one backup copy; (e) transfer, rent, lease, lend, or sublicense the Software or allow a third party to do so. Licensee may not otherwise transfer the Software or any of its rights and/or obligations under this Agreement; (f) utilize or run the Software on more computers than the number of licenses that were purchased; or (g) operate the Software in a fashion that exceeds the capacity or capabilities that were purchased.
2.4. Documentation. Licensee may reproduce the Documentation as reasonably necessary to support internal use of the Software.
2.5. Delivery. QuikBox shall provide the Software and Documentation to Licensee, through a reasonable system of electronic download or via other media, in its discretion. Delivery occurs when the Software is made available to Licensee.
3.1. Maintenance & Subscriptions. Software maintenance & subscriptions may be purchased separately or bundled into the price of the license. Licensee is not entitled to maintenance renewals and/or subscriptions if they have not paid for them in full. "Maintenance Term" and "Subscription Term" refers to the length of time for which the maintenance or subscription is purchased. The Maintenance and/or Subscription Term is listed on QuikBox's price list. Software updates and subscription information provided by QuikBox through QuikBox Software Maintenance, QuikBox Software Subscription, Desktop Software Maintenance, Extended Hardware Warranty or other software maintenance services are necessary to continue access to the functionality of the Software and for continued proper operation of the Software. Licensee acknowledges that failure to pay for ongoing maintenance and/or subscriptions will limit the functionality of Software and Licensee Hardware. Obtaining Software updates on systems where no valid subscription has been purchased or obtaining functionality where subscription has not been purchased is strictly forbidden and in violation of this Agreement. All initial subscriptions commence at the time of activation and all renewals commence at the expiration of the previous valid subscription. Unless otherwise expressly provided in the documentation, Licensee shall use the Maintenance & Subscription Updates solely as embedded in, for execution on, or where the applicable documentation permits installation on non-QuikBox equipment for communication with QuikBox equipment owned or leased by Licensee. All subscriptions are non-transferrable. QuikBox makes no warranty that Software will continue un-interrupted. Maintenance and Subscriptions may be suspended or terminated without notice by QuikBox for lack of full payment.
3.2. Maintenance & Subscription Term. The Maintenance and/or Subscription Term(s) shall renew automatically for a period of the same duration unless Licensee gives written notice of its intent not to renew 15 days before the end of the current Subscription Term. QuikBox will automatically bill Licensee unless notified 15 days before the renewal date.
3.3. Updates. During each Maintenance and/or Subscription Term, QuikBox shall provide Licensee with copies of all Updates, without additional charge, in accordance with the then-current service and subscription terms. Upon delivery to Licensee, each Update will constitute an element of the Software and will thereafter be subject to this Agreement's terms regarding Software, including without limitation license and warranty terms.
3.4. Support. Telephone, email and other forms of support will be provided to Licensee as part of the subscription. The hours of support vary based on country and the type of support subscription purchased. QuikBox's Maintenances & Subscriptions typically include Basic support.
4. FEES & REIMBURSEMENT.
4.1. Fees. Licensee shall pay QuikBox the fees set forth on the then current price list or QuikBox quote.
4.2. Invoices. Payment against all invoices will be due within 30 days thereof.
4.3. Fees for Renewal Terms. QuikBox may increase the License Fee and/or Subscription Fee for each renewed Term or Subscription Term, provided QuikBox gives Licensee notice of such increase before the end of the applicable current Term or Subscription Term.
4.4. Billing Disputes. Licensee must notify QuikBox of any billing problems or discrepancies within sixty (60) days of the date of QuikBox's invoice. Licensee agrees that failure to do so will waive its right to dispute such problems or discrepancies.
5. IP & FEEDBACK.
5.1. IP Rights in the Software. QuikBox retains all right, title, and interest in and to the Documentation and Software, including without limitation Updates, except to the extent of the limited licenses specifically set forth in Sections 2.1 (License), and 2.3 (Documentation). Licensee recognizes that the Software and its components are protected by copyright and other laws.
5.2. Trademarks. Certain portions of the product and names used in this Agreement, the Software and the Documentation may constitute trademarks of QuikBox. Licensee is not authorized to use any such trademarks for any purpose.
5.3. Feedback. Licensee hereby grants QuikBox a perpetual, irrevocable, worldwide license to use any Feedback (as defined below) Licensee communicates to QuikBox during the Term, without compensation, without any obligation to report on such use, and without any other restriction. QuikBox's rights granted in the previous sentence include, without limitation, the right to exploit Feedback in any and every way, as well as the right to grant sublicenses. Notwithstanding the provisions of Article 6 (Confidential Information) below, Feedback will not be considered Licensee's Confidential Information. ("Feedback"refers to any suggestion or idea for modifying any of QuikBox's products or services, including without limitation all Intellectual Property Rights in any such suggestion or idea).
6. CONFIDENTIAL INFORMATION.
6.1. Definition. "Confidential Information" refers to the following information disclosed by one party ("Discloser") to the other ("Recipient"): (a) any document Discloser marks "Confidential"; (b) any information Discloser orally designates as "Confidential" at the time of disclosure, or which given the circumstances of the disclosure and the nature of the information would reasonably be considered confidential; (c) the non-public features and functions of the Software, for which QuikBox is Discloser; and (d) any other nonpublic, sensitive information disclosed by Discloser. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Recipient's possession at the time of disclosure; (ii) is independently developed by Recipient without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Recipient's improper action or inaction; or (iv) is approved for release in writing by Discloser.
6.2. Nondisclosure. Recipient shall not use Confidential Information for any purpose other than to facilitate the transactions contemplated by this Agreement (the "Purpose"). Recipient: (a) shall not disclose Confidential Information to any employee or contractor of Recipient unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Recipient with terms no less restrictive than those of this Article 6; and (b) shall not disclose Confidential Information to any other third party without Discloser's prior written consent. Without limiting the generality of the foregoing, Recipient shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Recipient shall promptly notify Discloser of any misuse or misappropriation of Confidential Information that comes to Recipient's attention. Notwithstanding the foregoing, Recipient may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Recipient shall give Discloser prompt notice of any such legal or governmental demand and reasonably cooperate with Discloser in any effort to seek a protective order or otherwise to contest such required disclosure, at Discloser's expense.
6.3. Injunction. Recipient agrees that breach of this Article 6 would cause Discloser irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Discloser will be entitled to seek injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
6.4. Termination & Return. With respect to each item of Confidential Information, the obligations of Section 6.2 above (Nondisclosure) will terminate 3 years after the date of disclosure. Upon termination of this Agreement, Recipient shall return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof.
6.5. Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Discloser will retain all right, title, and interest in and to all Confidential Information.
7. SOFTWARE AUDIT.
During the Term of this Agreement and at any time during the five (5) years thereafter, QuikBox may audit Licensee's use of Software on 30 days' advance written notice. Licensee shall cooperate with the audit, including by providing access to any books, computers, records, or other information that relate or may relate to use of Software. Such audit shall not unreasonably interfere with Licensee's business activities. If QuikBox discovers unauthorized use, reproduction, distribution, or other exploitation of the restrictions for the Software, and such unauthorized use exceeds 5%, then Licensee shall reimburse QuikBox for the reasonable cost of the audit, or of the next audit in case of discovery without an audit, in addition to such other rights and remedies as QuikBox may have. QuikBox may not conduct an audit more than once per year.
8. REPRESENTATIONS & WARRANTIES.
8.1. From QuikBox.
QuikBox represents and warrants that, during the 30 day period following Delivery, the Software will perform materially as described in its Specifications.
QuikBox represents that, to its knowledge, at the time of Delivery, the Software is free of what are commonly defined as viruses, worms, spyware, malware and other malicious code that may potentially hamper performance of the Software.
8.2. From Both Parties. Each party represents and warrants that it has the full right and authority to enter into, execute, and perform its obligations under this Agreement without further consent of any third party.
8.3. Warranty Disclaimers. Except for the express warranties in Sections 8.1 and 8.2 above, QUIKBOX MAKES NO WARRANTIES, EITHER EXPRESS IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, AND OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS. QuikBox does not warrant that the Software will perform without error or that it will run without interruption. QuikBox provides no warranty regarding, and will have no responsibility for, any claim arising out of: (a) a modification of the Software made by anyone other than QuikBox, unless QuikBox approves such modification in writing; or (b) use of the Software in combination with any operating system not authorized in the Specifications or Documentation or with hardware or software specifically forbidden by the Specifications or Documentation. LICENSEE EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE USE OF THE SOFTWARE IS AT ITS OWN RISK AND THAT THE ENTIRE RISK AS TO SATISFACTION, QUALITY, PERFORMANCE, AND ACCURACY IS WITH LICENSEE. QUIKBOX DOES NOT WARRANT THE CONTINUED OPERATION OF THE SOFTWARE, THAT THE PERFORMANCE WILL MEET LICENSEE'S EXPECTATIONS, THAT THE FUNCTIONS WILL MEET LICENSEE REQUIREMENTS, THAT THE OPERATION WILL BE ERROR FREE OR CONTINUOUS, THAT CURRENT OR FUTURE VERSIONS OF ANY OPERATING SYSTEM WILL BE SUPPORTED, OR THAT DEFECTS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION GIVEN BY QUIKBOX OR ANY AUTHORIZED QUIKBOX REPRESENTATIVE SHALL CREATE A WARRANTY. QUIKBOX HAS NO LIABIILTY FOR LOSS OF DATA, OR FOR ERRORS, FAILURES OR DAMAGE WHICH WERE CAUSED BY IMPROPER OPERATION, USE OF UNSUITABLE RESOURCES OR ABNORMAL OPERATING CONDITIONS (IN PARTICULAR DEVIATIONS FROM THE INSTALLATION CONDITIONS). QuikBox does not warrant that the Software or any equipment, system or network on which the Software is used will be free of vulnerability to intrusion or attack.
The Software is not intended for use with any high risk or strict liability activity, including, without limitation, air or space travel, nuclear facilities, technical building or structural design, power plant design or operation, life support or emergency medical operations or uses, or any other uses in which failure could lead to death, personal injury, or environmental damage, and Licensor makes no warranty and shall have no liability arising from any use of the Licensor Software in any high risk or strict liability activities.
9. LIMITATION OF LIABILITY.
9.1. Limit. QUIKBOX'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED the amount paid to QuikBox for the Software IN THE PREVIOUS TWELVE MONTHS.
9.2. Exclusion of Consequential Damages. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO LICENSEE FOR PERSONAL INJURY OR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY AND EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
9.3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 9 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF QUIKBOX IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF LICENSEE'S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 9, QuikBox's liability will be limited to the maximum extent permissible. For the avoidance of doubt, QuikBox's liability limits and other rights set forth in this Article 9 apply likewise to QuikBox's affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
10. TERM & TERMINATION.
10.1. Term. This Agreement shall be effective upon the Effective Date and will end (a) upon the expiration of its stated term; (b) upon Licensee's non-renewal of the licenses; (c) upon Licensee's cancellation of the license; or (d) when Licensor cancels or terminates the license, pursuant to section 10.2, whichever occurs first. Any such expiration, cancellation, discontinuation, or termination are referred to hereafter as "termination. If the Software is a time-based license, Licensee expressly acknowledges that the Software will stop functioning at the time the license expires unless renewed or extended as set forth in this Agreement.
10.2. Termination for Cause. Either party may terminate this Agreement for the other's material breach by written notice, effective in 30 days unless the other party first cures such breach.
10.3. Effects of Termination. Upon termination of this Agreement, Licensee shall cease all use of the Software and delete, destroy, or return all copies of the Software and Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Licensee to pay fees incurred before termination; (b) Articles and Sections 2.3 (Restrictions on Software Rights) 5 (IP & Feedback), 6 (Confidential Information), 7 (Software Audit), 8.3 (Warranty Disclaimers), 9 (Limitation of Liability), 10 (Term and Termination), and 11 ("Collection of Data"); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
11. COLLECTION OF DATA.
Licensee agrees to allow QuikBox to collect information ("Statistics") from the Software in order to fight spam, virus, and other threats as well as optimize and monitor the Software. Information will be collected electronically and automatically. Statistics include, but are not limited to, the number of messages processed, the number of messages that are categorized as spam, the number of virus and types, IP addresses of the largest spam senders, the number of emails classified for Bayesian analysis, capacity and usage, websites not categorized, fingerprints of emails, and other statistics. Licensee data will be kept private and will only be reported in the aggregate by QuikBox. QuikBox may transfer personal information and data outside of the European Union for purposes of providing software and subscription maintenance services, and Licensee consents to such use and transfer of personal information and data.
12.1. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other's behalf.
12.2. Notices. Notices pursuant to this Agreement shall be sent to the addresses below, or to such others as either party may provide in writing. Such notices will be deemed received at such addresses upon the earlier of (a) actual receipt or (b) delivery in person, by fax with written confirmation of receipt, or by certified mail return receipt requested. For QuikBox: attn.: Legal Department, QuikBox Solutions, 40 Cypress Creek Pkwy. #409, Houston, TX 77090.
12.3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party's reasonable control.
12.4. Assignment & Successors. Licensee may not assign this Agreement or any of its rights or obligations hereunder without QuikBox's express written consent. Except to the extent forbidden in this Section, this Agreement will be binding upon and inure to the benefit of the parties' respective successors and assigns.
12.5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
12.6. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
12.7. Government Restricted Rights. The Software is provided with Restricted Rights. Use, duplication, or disclosure for or by the government of the United States, including without limitation any of its agencies or instrumentalities, is subject to restrictions set forth, as applicable: (i) in subparagraphs (a) through (d) of the Commercial Computer Software-Restricted Rights clause at FAR 52.227-19; or (ii) in similar clauses in other federal regulations, including the NASA FAR supplement. The contractor or manufacturer is QuikBox. Licensee shall not remove or deface any restricted rights notice or other legal notice appearing in the Software or on any packaging or other media associated with the Software.
12.8. Choice of Law & Jurisdiction: This Agreement will be governed solely by the laws of the State of Texas without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties' rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Harris, Texas.
12.9. Dispute Resolution. IF YOU LIVE IN THE UNITED STATES, THIS SECTION CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IT AFFECTS YOUR RIGHTS ABOUT HOW TO RESOLVE ANY DISPUTE WITH QUIKBOX. PLEASE READ IT.
The parties will attempt to resolve any claim, or dispute or controversy (whether in contract, tort or otherwise) against QuikBox, its agents, employees, successors, assigns or affiliates (collectively for purposes of this paragraph, "QuikBox") arising out of or relating to this Agreement, QuikBox advertising, or any related purchase (a "Dispute") through face to face negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mutually agreeable mediator, rather than through litigation. If the parties are unable to resolve the Dispute through negotiation or mediation within a reasonable time after written notice from one party to the other that a Dispute exists, the Dispute will be settled by binding arbitration in accordance with the then current AAA Rules and the parties agree to share the arbitration costs equally. The Arbitration will be conducted before three (3) independent and impartial arbitrators. QuikBox will appoint one (1) arbitrator and the other party or parties will appoint one (1) arbitrator. The two (2) appointed arbitrators will then select a third arbitrator, who shall be the presiding arbitrator. The arbitration hearing shall take place in Houston, Texas and will be governed by the United States Federal Arbitration Act to the exclusion of any inconsistent state laws. The arbitrators shall base their award on the terms of this Agreement, and will follow the law and judicial precedents that a United States District Judge sitting in the county of Santa Clara would apply to the Dispute. The arbitrators shall render their award in writing and will include the findings of fact and conclusion of law upon which their award is based. Judgment upon the arbitration award may be entered by any court of competent jurisdiction. The existence or results of any negotiation, mediation or arbitration will be treated as confidential. Notwithstanding the foregoing, either party will have the right to obtain from a court of competent jurisdiction a temporary restraining order, preliminary injunction or other equitable relief to preserve the status quo or prevent irreparable harm, although the merits of the underlying Dispute will be resolved in accordance with this paragraph. THE PARTIES AGREE TO ARBITRATE SOLELY ON AN INDIVIDUAL BASIS, AND THAT THIS AGREEMENT DOES NOT PERMIT CLASS ARBITRATION OR ANY CLAIMS BROUGHT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ARBITRATION PROCEEDING. THE ARBITRAL TRIBUNAL MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
12.10. Construction. This Agreement will not be construed in favor of or against either party by reason of authorship.
12.11. Changes. QuikBox reserves the right at any time not to release, or to discontinue release of, any Software or subscription and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of any future releases of the Software or subscriptions.
12.12. Technology Export. Licensee shall not: (a) permit any third party to access or use the Software in violation of any U.S. law or regulation; or (b) export the Software or otherwise remove it from the United States except with the prior written consent of QuikBox and in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Licensee shall not permit any third party to access or use the Software in, or export it to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria); or (c) transfer or authorize the transfer of the Software to a prohibited territory or country or otherwise in violation of any applicable restrictions or regulations. If Licensee is a United States Government agency, the Software and documentation qualify as "commercial items", as that term is defined at Federal Acquisition Regulation ("FAR") (48 C.F.R.) 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this Agreement may be incorporated, Government end user will acquire the Software and documentation with only those rights set forth in this Agreement. Use of either the Software or documentation or both constitutes an agreement by the Government that the Software and documentation are "commercial computer software" and "commercial computer software documentation", and constitutes acceptance of the rights and restrictions herein.
12.13. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
12.14. Execution in Counterparts. This Agreement may be executed in one or more counterparts. Each counterpart will be an original, but all such counterparts will constitute a single instrument.
12.15. Amendment. This Agreement may not be amended except through a written agreement by authorized representatives of each party.
12.16. Open Source Licensing. QuikBox products may include programs that are covered by the GNU General Public License (GPL), The Lesser General Public License (LGPL), or other Open Source license agreements, in particular the Linux operating system. The Software does not constitute an edited version or further development of the operating system. These programs are copyrighted by their authors or other parties, and the authors and copyright holders disclaim any warranty for such programs. QuikBox owns the copyright in other programs. In addition, some Software which supports Bare Metal Disaster Recovery of Microsoft Windows Vista and Microsoft Windows 2008 Operating Systems (DR6) contains and uses components of the Microsoft Windows Pre-Installation Environment (WINPE) with the following restrictions: (i) the WINPE components in the DR6 product are licensed and not sold and may only be used with the DR6 product; (ii) DR6 is provided "as is"; (iii) QuikBox and its suppliers reserve all rights not expressly granted; (iv) license to use DR6 and the WINPE components is limited to use of the product as a recovery utility program only and not for use as a general purpose operating system; (v) Reverse engineering, decompiling or disassembly of the WINPE components, except to the extent expressly permitted by applicable law, is prohibited; (vi) DR6 contains a security feature from Microsoft that will automatically reboot the system without warning after 24 hours of continuous use; (vii) QuikBox alone will provide support for customer issues involving DR6 and Microsoft, and its Affiliates are released of all liability related to its use and operation; and, (viii) DR6 is subject to U.S. export jurisdiction.