Exhibit
Fairwinds Insights Terms and Conditions
These terms and conditions to the Sale Order Form (together with the Sale Order Form, the “Agreement”), dated as of the effective date of the Sale Order Form (the “Effective Date”), governs all uses of the Product (as defined below), provided by Fairwinds Ops, Inc., a Delaware corporation (“Fairwinds”), by the undersigned individual or organization using the Product (“Customer”). By signing the Sale Order Form, the Customer accepts the terms and conditions of this Agreement, which may be amended from time to time.
If the individual accepting this Agreement by signing the SOF is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its Affiliates to these terms and conditions, in which case the term “Customer” shall refer to such entity and its Affiliates. If the individual accepting this Agreement does not have such authority or does not agree with these terms and conditions, such individual must not and legally does not accept this Agreement and may not use the Product.
1. Definitions
“Agent” means the software made available to Customer on an optional basis through the Fairwinds Products and deployed into one or more Kubernetes clusters or other environments controlled by Customer.
“Affiliate” means an organization that owns or controls, is owned or controlled by, or is under common ownership or control with another organization.
“Customer” means the individual or other legal entity agreeing and entering into the SOF (as defined herein) and this Agreement.
“Customer Data” means electronic data and information submitted by or for Customer through the Fairwinds Products or to Third-Party Tools or other products operated by Fairwinds for use in connection with the Fairwinds Products.
“Customer Systems” means any and all hardware, software or other systems that Customer owns, leases or controls.
“Documentation” means the document(s) that Fairwinds makes available to Customer from time to time that provide instructions for using the Fairwinds Products.
“Fairwinds Content” means information created by Fairwinds and made available to Customer and Users through the Fairwinds Products, including the Documentation and information that Fairwinds will communicate to Customer during the Term through its software, by email and by other means of communication.
“Fairwinds Marks” means any and all trademarks, service marks, logos or other branding owned or controlled by Fairwinds relating to the Fairwinds Products or Fairwinds. “Fairwinds Marks” does not include any Intellectual Property of any third party.
“Fairwinds Products” means the SaaS Platform or Insights Local, as designated by the SOF.
“Fees” means the fees set forth in Section 7.1 of this Agreement.
“Insights Application” means the Fairwinds Insights software, consisting of user interface(s), application programming interfaces (APIs), the Agent, Documentation, and related Intellectual Property that runs on the SaaS Platform or within Insights Local.
"Insights Local" means a downloadable software package that Fairwinds makes available to Customer for self-hosting the Fairwinds Insights software product in the Customer environment.
“Intellectual Property” means any and all registered and unregistered rights granted or applied for related to copyrights, patents, trademarks, trade secrets, and trade dress or other similar or equivalent intellectual property rights or forms.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Marketplace Partner” means a third-party organization that offers individuals or organizations the ability to use Fairwinds Products.
"Node” means the sum of control plane nodes plus worker nodes, with Node usage measured hourly and the billable node count calculated monthly, on the last day of the month, by averaging the node count across all hours for that month; provided, however, that: (1) Kubernetes control plane nodes are not counted as billable nodes when the Agent SaaS Platform is running on a Managed Kubernetes Service such as AWS EKSAKS, Google GKE, or Azure AKS;. (2) any system node pools required by a Managed Kubernetes Service such as AWS EKS, Google GKE, or Azure AKS are considered worker nodes and will be counted as billable nodes.
“Open-Source Software” means software developed by or made available for use by the open-source community, and may include including software that requires as a condition of use, modification and/or distribution of such software that other software incorporated into, derived from or distributed with such software be disclosed or distributed in source code form, licensed for the purpose of making derivative works, or redistributable at no charge.
“Personnel” means a party's employees, independent contractors, owners, officers, directors and consultants.
“SaaS Platform” means the Software-as-a-Service product developed and hosted by Fairwinds at https://insights.fairwinds.com.
"SOF" means the Sales Order Form agreed to by the Customer that specifies Products to be provided to Customer by Fairwinds, subject to the terms and conditions of this Agreement.
“Third-Party Materials” means information, content or other material that is created by, provided by or originating in Third-Party Tools.
“Third-Party Tools” means unmodified software or services provided by third parties and which is provided to Customer as part of or in connection with the Fairwinds Products. Third-Party Tools include Open-Source Software as well as proprietary software made available by third parties.
“User” means an individual who is authorized by Customer to use the Fairwinds Products. Users may include employees of Customer as well as its Affiliates or third parties.
2. Fairwinds SaaS Products.
The Fairwinds Products are a suite of software developed and offered by Fairwinds, consisting of the SaaS Platform or Insights Local, and incorporating Third-Party Tools. The SaaS Platform runs the Insights Application and is delivered to Customer and Users in the form of Software-as-a-Service that does not require or allow download on Customer Systems and is accessed by visiting Fairwinds Insight’s website, https://insights.fairwinds.com. Insights Local runs the Insights Application and is delivered to Customer and Users in the form of a downloadable software package that Fairwinds will make available to the Customer pursuant to this Agreement and the SOF. The SaaS Platform will be hosted on a server under the control or direction of Fairwinds. For each User that Customer wishes to authorize to use the SaaS Platform, Customer will provide Fairwinds with an email address and Fairwinds will send an email to that address providing the User with onboarding and setup instructions. Insights Local will be hosted locally by Customer on servers of its choice and under its control or direction. The Agent is deployed in Customer's Kubernetes cluster(s) if and when Customer manually authorizes that deployment via the interface and/or instructions available in the Insights Application.
3. Intellectual Property, Access and Use.
3.1 Access. Subject to and conditioned on Customer's compliance with this Agreement, including its payment provisions, Fairwinds hereby grants the Customer (a) a limited, non-exclusive, non-transferable, worldwide, royalty-free, revocable license during the Term to access the SaaS Platform and deploy the Agent in Kubernetes clusters owned or controlled by Customer and/or (b) a non-exclusive, non-transferable, revocable right during the Term to download, store and use a single production copy of Insights Local, connected to a single database or datastore, running on a single physical or virtual server, during the Term and solely for the Permitted Use consistent with the Documentation
3.2 Permitted Use. “Permitted Use” means (a) accessing copying, performing, displaying, modifying, distributing and transmitting the Fairwinds Content for use internal to the Customer Group only and (b) using and displaying the Fairwinds Marks in the manner dictated by Fairwinds Products. The Permitted Use includes the right and license to print physical copies of Fairwinds Content for use solely by Customer’s Users. The Permitted Use excludes the conduct set forth in Section 3.3 (“Use Restrictions”).
3.3 Use Restrictions. Customer will use the Fairwinds Products consistent with this Agreement, the Documentation and applicable laws, and will use commercially reasonable efforts to prevent unauthorized access to or use of the Fairwinds Products and will notify Fairwinds promptly of any such unauthorized access or use. Customer will not at any time during or after the Term, directly or indirectly: (a) sell, resell, license, sublicense, distribute, rent or lease any part of the Fairwinds Products, or disclose any of them to any third parties without compensation; (b) use the Fairwinds Products to store, use or transmit material in violation of third-party privacy or Intellectual Property rights; (c) use the Fairwinds Products to store or transmit code, files, scripts, agents or programs intended to do harm, including any Malicious Code, for example, viruses, worms, time bombs and Trojan horses, or disable, impair or conduct penetration tests or scans of any hardware, software or other systems that Fairwinds owns, leases or controls; (d) interfere with or disrupt any aspect of the Fairwinds Products’ integrity or performance; (e) gain unauthorized access to the Fairwinds Products; (f) access or use any Fairwinds Intellectual Property except as this Agreement allows; (g) modify, copy, or create derivative works based on the Fairwinds Products or any part of either of them; (h) frame or mirror any part of the Fairwinds Products, other than framing on Customer's own intranets or otherwise for Customer's own internal business purposes or as permitted in the Documentation; (i) remove or modify any attributions, proprietary marks or notices that Fairwinds may include in the Fairwinds Products, including any attributions, property marks or notices relating to Third-Party Tools or to Fairwinds; (j) use the Fairwinds Products in a way not expressly authorized by this Agreement; or (k) disassemble, reverse engineer, or decompile any part of the Fairwinds Products to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Fairwinds Products, (3) copy any ideas, features, functions or graphics of the Fairwinds Products or (4) determine whether the Fairwinds Products are within the scope of any patent.
3.4 Documentation License. Subject to this Agreement, Fairwinds hereby grants to Customer and each User a non-exclusive, non-sublicensable, non-transferable license to use the Documentation during the Term solely for Customer's internal business purposes in connection with their use of the Fairwinds Products.
3.5 Suspension. Fairwinds may temporarily suspend Customer's and any User's access to any part or all of the Insights Application: (i) if Fairwinds reasonably determines that (A) there is a threat or attack on any of the Fairwinds Products; (B) Customer's or any User's use of the Fairwinds Products disrupts or poses a security risk to the Fairwinds Products or to any other customer or vendor of Fairwinds; (C) Customer or any User uses the Fairwinds Products for fraudulent or illegal activities; (D) Customer becomes the subject of any bankruptcy, liquidation, dissolution, or similar proceeding; or (E) Fairwinds’ provision of the Fairwinds Products to Customer or any User is or becomes prohibited by applicable law; (ii) if any vendor of Fairwinds has suspended or terminated Fairwinds 's access to or use of any Third-Party Tools required to enable Customer to access the Fairwinds Products; (iii) on receipt of a court order or law enforcement request directing such suspension; or (iv) if Customer is in default of any payment obligation to Fairwinds under this Agreement for 30 or more days (any such suspension described in subclause (i), (ii), (iii) or (iv), a “Suspension”). Fairwinds will use commercially reasonable efforts to provide written notice of any Suspension to Customer and to provide updates regarding resumption of access to the Insights Application following any Suspension. Fairwinds shall use commercially reasonable efforts to resume providing access to the Fairwinds Products as soon as reasonably possible after the event giving rise to the Suspension is cured. Fairwinds will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any User may incur as a result of a Suspension.
3.6 Modification and Discontinuance. Fairwinds may modify the Fairwinds Products and/or Fairwinds Content at any time during the Term, with or without prior notice to Customer, and Fairwinds will not be liable to Customer or to any third party for any such modification. It may be necessary for Fairwinds to perform repairs or maintenance or remotely patch or upgrade the Fairwinds Products, which may temporarily degrade the quality of the Fairwinds Products or the Fairwinds Content or result in a partial or complete outage of the Fairwinds Products or the Fairwinds Content. Fairwinds may also discontinue the inclusion of some or all Third-Party Tools in the Fairwinds Products to the extent that their respective owners or publishers discontinue them or stop making them available to Fairwinds.
3.7 Feedback. Fairwinds may allow Customer to provide Fairwinds with comments or suggestions about Fairwinds or the Fairwinds Products (“Feedback”). Customer hereby grants Fairwinds a perpetual, irrevocable, non-exclusive, worldwide, royalty-free license to copy and store any Feedback and use it to develop new products, improve or modify the Fairwinds Products or as Fairwinds may otherwise deem appropriate.
3.8 Reservation. All right, title, and interest in the Intellectual Property embodied in the Fairwinds Products, the Fairwinds Content and the Fairwinds Marks are and shall remain solely the property Fairwinds or, in the case of Third-Party Tools, to the owner or licensor of such Intellectual Property. Any and all Intellectual Property rights in Third-Party Materials belong to their respective owners. Customer will have no rights in the Fairwinds Products except as this Agreement expressly grants. This Agreement provides Customer, and its Users, with no licenses, ownership or rights other than those expressly provided herein.
3.9 Aggregated Statistics. Fairwinds may monitor Customer’s and Users’ use of the Fairwinds Products and collect and compile Aggregated Statistics. Fairwinds may (a) make Aggregated Statistics publicly available for marketing and/or sales purposes in compliance with applicable law (except where doing so would violate this Agreement’s confidentiality obligations or applicable law) provided that such Aggregated Statistics do not identify Customer or Customer's Confidential Information and (b) use Aggregated Statistics for internal business purposes to the extent and in the manner permitted under applicable law. Fairwinds will have and retain all right, title, and interest in Aggregated Statistics and all intellectual property rights therein, and Fairwinds may use Customer Data that is input into the Fairwinds Products to compile Aggregated Statistics. “Aggregated Statistics” means data and information related to Customer's use of the Fairwinds Products that is used by Fairwinds in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Fairwinds Products.
4. Fairwinds' Responsibilities
4.1 Availability of the SaaS Platform. During the Term, Fairwinds will use commercially reasonable efforts to make the SaaS Platform available to the Customers and Users, except for: (a) planned downtime (of which Fairwinds will give advance electronic notice), (b) downtime resulting from downtime of Fairwinds’ hosting provider or of any other providers of Third-Party tools; and (c) force majeure events defined in this Agreement.
4.2 Safeguards. Fairwinds will maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Fairwinds will not disclose Customer Data to any third party or use it for any other purpose not necessary for Fairwinds to operate and provide the Fairwinds Products or not permitted by Fairwinds' Privacy Policy. Fairwinds' obligations under this section will not apply to the extent that any Customer Data is (a) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of Fairwinds, (b) subsequently disclosed to Fairwinds on a non-confidential basis by a third party not having a confidential relationship with Customer that rightfully acquired such information, (c) communicated by Fairwinds to a third party with Customer's prior written consent, or (d) disclosed by Fairwinds pursuant to a subpoena, court order or request by law enforcement or otherwise required by law.
4.3 Customer Service. Except for providing the Documentation or as outlined in the SOF, Fairwinds will not provide training, onboarding or other customer services to Customer, to Users or to any third party under this Agreement or otherwise.
4.4 Updates. Fairwinds may from time to time in its sole discretion develop and provide updates to the Fairwinds Products, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related Documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. Customer agrees that Fairwinds has no obligation to provide any Updates, to fix bugs or to continue to provide or enable any particular features or functionality. Customer further agrees, if applicable, to make regular and timely updates to Insights Local after receiving notifications from Fairwinds of a necessary Update.
5. Customer's Responsibilities
5.1 Customer’s Responsibilities. During the Term, Customer will (a) use the Fairwinds Products consistent with this Agreement, with the Documentation and with applicable laws and will ensure that Users do the same, (b) ensure the accuracy of Customer Data, (c) ensure that Customer’s provision of Customer Data to Fairwinds does not violate any third party’s privacy or data protection rights or other rights, (d) use best efforts to ensure that User’s provision of Customer Data to Fairwinds does not violate any third party’s privacy or data protection rights or other rights, (e) use commercially reasonable efforts to prevent unauthorized access to or use of the Fairwinds Products by third parties and notify Fairwinds promptly of any such unauthorized access or use of which Customer becomes aware, and (f) comply with any terms of service or similar agreements used by any Third-Party Tools that Customer may use in connection with the Fairwinds Products.
6. Term and Termination
6.1 Term. The SOF and this Agreement begins on the Effective Date and terminates one year later (the “Initial Term”) unless terminated earlier or extended pursuant to the terms of this Agreement. Unless otherwise agreed to in any amended or subsequent SOF, the SOF and this Agreement will automatically renew for successive one-year periods (“Renewal Terms”) after the Initial Term's end. The “Term” means the Initial Term and all Renewal Terms together.
6.2 Termination. In addition to any other remedies it may have, either party may also terminate the SOF and this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of the SOF and this Agreement or engages in any illegal or fraudulent activity. Customers will pay in full for Fairwinds Products up to and including the last day on which the Fairwinds Products are provided for. Upon any termination, the Customer agrees to remove any use of the Fairwinds Products, including removing Insights Local in its entirety from Customer’s servers. Unless otherwise deleted by the Customer via the Insights Application, Fairwinds will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Fairwinds may, but is not obligated to, delete stored Customer Data. All sections of the SOF and this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability. Any termination of the SOF and this Agreement will also contemporaneously terminate all licenses and access authorizations that it grants except those in Sections 3.7 (Feedback) and 3.9 (Aggregated Statistics).
7. Fees and Payment.
7.1 Fees. In consideration of Customer’s access to, and use of, the Fairwinds Products and Fairwinds’ undertakings in this Agreement, Customer will pay Fairwinds all fees set forth in any SOF entered into under this Agreement hereto at the times set forth in such SOF. No fees are refundable once paid by Customer except this Agreement may expressly provide. If Customer fails to make a fee payment when due, Fairwinds may charge interest on the past due amount at 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate allowed by law.
7.2 Expenses. Customer will be liable to Fairwinds for expenses incurred by Fairwinds in connection with this Agreement only to the extent the SOF expressly authorizes such expenses.
7.3 Taxes. Each party will be responsible for its own taxes properly levied on it by virtue of its undertakings hereunder.
7.4 Future Functionality. Customer agrees that Customer’s purchases and entry into this Agreement are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Fairwinds regarding future functionality or features.
8. Representations and Warranties
8.1 Mutual Representations and Warranties. Each party represents and warrants to the other that it has the right, power and authority to enter into and perform its obligations under the SOF and this Agreement.
8.2 Customer’s Further Representations and Warranties. Customer’s Further Representations and Warranties. Customer represents and warrants that (a) Customer will comply fully with any Terms of Use or similar agreements that apply to Third-Party Tools that Fairwinds adopts and/or includes in its products and/or platforms as a “global update” across all similar Fairwinds products and/or platforms, (b) Customer is not an agency, department, or other unit of any federal, state, county, municipal or other governmental entity in the United States of America or in any other country and (c) at all times during the Term, Customer will have in effect appropriate types and levels of insurance covering Customer for losses, damages or expenses arising out of a cybersecurity event, incident or breach.
9. Disclaimers.
The Fairwinds Products are provided "as is" without warranty of any kind. Fairwinds disclaims all warranties to Customer and to all Users and to any third party, whether express, implied or statutory, regarding the Fairwinds Products, including without limitation any implied warranties of merchantability, accuracy, results of use, reliability, fitness for a particular purpose, title, non-infringement of third-party rights and any warranties or conditions arising out of course of dealing or usage of trade. Fairwinds also disclaims any warranty that the Fairwinds Products will be uninterrupted, error-free, virus-free, or secure and that Customer's use of the Fairwinds Products will produce any particular business result or protect Customer Systems will be protected from attack.
Fairwinds does not provide any warranties regarding any Third-Party Tools. Any warranty on Third-Party Tools will only be provided by their respective providers. Customer assumes the entire cost of all necessary servicing, repair, or correction of problems caused by viruses or other harmful components, unless such errors or viruses are the direct result of Fairwinds' gross negligence or willful misconduct.
The Third-Party Tools may vary during the Term if Fairwinds from time to time chooses to remove individual Third-Party Tools from the Fairwinds Products or if suppliers of Third-Party Tools discontinue them, discontinue Fairwinds' access to them or make them available to Fairwinds on terms that Fairwinds deems commercially impracticable. Accordingly, Fairwinds does not warrant or guarantee that any or all Third-Party Tools accessible via the Fairwinds Products at the time of execution of this Agreement will remain accessible to Customer throughout the Term.
The disclaimers in this section apply to the greatest extent permitted by applicable law and notwithstanding anything else in this Agreement or any exhibits hereunder.
10. Limitation of Liability.
Except with respect to either party's confidentiality or indemnification obligations hereunder or damages arising from either party's violation of the other party's Intellectual Property rights, (a) neither party will be liable to the other party or to any third party for any incidental, indirect, punitive, special or consequential damages relating to this Agreement and (b) Fairwinds' aggregate liability for any and all claims relating to or arising from this Agreement under any theory will not exceed the total fees (if any) paid by Customer to Fairwinds solely for access to and use of the Fairwinds Products in the three months before the event giving rise to the claim or $5,000, whichever is more. Fairwinds will have no liability to any third party for any losses or damages under any theory of liability. The limitations in this Section 10 will apply to all claims for damages, whether based in contract, warranty, strict liability, negligence, tort, or otherwise, and regardless of the person bringing the claim. This Section 10 (“Limitation of Liability") is intended to be as inclusive as applicable law permits. Customer’s agreement to this Agreement confirms that Customer has read this Section 10, fully understands it, has had the opportunity to discuss it with legal counsel of Customer’s choice, understands that through it Customer is giving up substantial rights, and intends to completely and unconditionally release liability to the greatest extent allowed by law.
11. Indemnification.
Fairwinds will indemnify, defend and hold harmless (collectively “indemnify” or “indemnification”) Customer and Customer’s officers, employees, directors, agents, independent contractors, licensors and suppliers (“Customer Indemnitees”) from and against any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) incurred by such Customer Indemnitee resulting from any action by a third party alleging that the Fairwinds Products infringes any patent, trademark or copyright of any third parties. Such indemnification, however, excludes claims that arise or result from (A) any use of the Fairwinds Products by Customer, by a User or by any other party that violates this Agreement; (B) the combination, operation, or use of the Fairwinds Products in connection with a Third-Party Tools; (C) modifications to the Fairwinds Products not made by Fairwinds; (D) Customer Data; or (D) Third-Party Tools. This indemnification is the sole and exclusive remedy available to Customer with respect to any third-party Intellectual Property claims against any Customer Indemnitee.
Customer will indemnify Fairwinds and Fairwinds’ officers, employees, directors, agents, independent contractors, licensors and suppliers (“Fairwinds Indemnitees”) from and against any Losses incurred by such Fairwinds Indemnitee resulting from any action by a third party to the extent such Losses arise out of or result from, or are alleged to arise out of or result from (A) any actions that Customer, or an User, takes or fails to take in connection with the use of the Fairwinds Products, (B) Customer Data, including any processing of Customer Data by or on behalf of Fairwinds in accordance with this Agreement; (C) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any User; (D) any allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants, or obligations under this Agreement; or (E) gross negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any User, or any third party on behalf of Customer or any User, in connection with this Agreement.
Each party will promptly notify the other in writing of any action, threat of suit or claim for arbitration that the first party receives that may qualify for an indemnification provided herein. In such a case, the parties will confer in good faith regarding the appropriate course of conduct, and the indemnifying party will have sole discretion regarding the disposition and any settlement of the matter.
12. General
12.1 Reservation of Rights. Nothing in this Agreement will preclude or limit Fairwinds’ rights to market, make available or license any product that Fairwinds now offers or may in the future offer. The section shall be subject to the provisions as included in this agreement including, but not limited to provisions regarding protection of Confidential Information.
12.2 Nature of Relationship. Each party will act as an independent contractor with respect to this Agreement. This Agreement creates no agency, partnership, joint venture, other joint relationship or fiduciary relationship. Neither party may make any commitments binding on the other, nor may either party make any representation that they are acting for, or on behalf of, the other.
12.3 Confidentiality. This paragraph applies to any Confidential Information received by a party (the “Recipient”) from the other party (the “Discloser”) in connection with this Agreement. A Recipient will use such Confidential Information solely to perform its duties under this Agreement and will disclose it only to the Recipient’s Personnel who are bound by obligations of confidentiality at least as strict as those contained in this Agreement. “Confidential Information” means information designated by the Discloser as “confidential” or “proprietary” or which a reasonable person would understand to be confidential given the nature of the information and the circumstances of the disclosure. Confidential Information includes, without limitation, information relating to the business, operations, ideas, inventions, strategies and finances of a party or its customers. Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault of the Recipient; (ii) is in the Recipient’s possession before receipt from the Discloser; (iii) is acquired by the Recipient from a third party without breach of a confidentiality obligation; or (iv) is independently developed by Recipient without reference to the Discloser’s Confidential Information. Money damages will not be an adequate remedy if this section is breached and, therefore, either party may, in addition to any other remedies, seek an injunction or other equitable relief against such breach or threatened breach without the necessity of posting any bond or surety.
12.4 Third-Party Beneficiaries. There are no third-party beneficiaries under the SOF or this Agreement except as the SOF or this Agreement may expressly provide.
12.5 Assignment. Neither party may assign this agreement with the prior written consent of the other party, except no such consent shall be required for an assignment in connection with a sale of all or substantially all of either party’s assets or equity.
12.6 Force Majeure. Neither party will be held liable for failure to perform any obligation of or delay in performance resulting from or contributing to any cause beyond that party's reasonable control, including without limitation any act of God, act of civil or military authority, act of war or terrorism, act or order (including delay, failure to act, or priority) of any governmental authority, power outages, civil disturbance, insurrection or riot, sabotage, fire, severe weather conditions, earthquake, flood, strike, work stoppage or other labor difficulty, outbreak of a pandemic, virus or other public health crisis, embargo, delay in transportation or embargoes. The affected party's obligations will be suspended solely to the extent caused by the force majeure and so long as it lasts, and the time for performance of the affected obligation will be extended by the time of the delay that the force majeure causes.
12.7 Export Regulations. Each party warrants that it will comply in all respects with any export and re-export restrictions imposed by any U.S. or foreign law to the Fairwinds Products. Each party represents that it is not named on any U.S. government denied-party list.
12.8 Agreement Binding on Successors. This Agreement will bind and inure to the benefit of the parties and their heirs, administrators, successors, and permitted assigns.
12.9 Severability. If any provision of the SOF and this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that the SOF and this Agreement will otherwise remain in full force and effect and enforceable.
12.10 Waiver. No waiver of any breach of any provision of this Agreement will constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver will be effective unless made in writing and signed by an authorized representative of the waiving party.
12.11 Entire Agreement. The SOF and this Agreement are the entire understanding of the parties and supersedes all prior agreements between them concerning its subject matter. Any amendment must be in writing and expressly state that it is amending the SOF and/or this Agreement.
12.12 Governing Law. The laws of Massachusetts, except for conflict-of-law rules, will apply to any dispute related to the Fairwinds Products and to this Agreement.
12.13 Dispute Resolution and Time Limitation. The parties will attempt to settle any dispute or claim by either of them relating to the SOF and/or this Agreement by good-faith consultation. If such consultation yields no satisfactory resolution of the dispute or claim, then either party may submit it to arbitration by Judicial Arbitration and Mediation Services (JAMS) in Boston, Massachusetts. The award will be final and binding on the parties as from the date rendered, and will be the sole and exclusive remedy between the parties regarding any claims, counterclaims, issues, or accounting presented to the arbitral tribunal. Judgment upon any award may be entered in any court having jurisdiction thereof. In the case of any dispute, the prevailing party to this Agreement will be entitled to recover reasonable attorneys' fees and costs, including expert witness fees, from the other party. Customer will bring any claim, action or proceeding that Customer may have against Fairwinds (or against any of Fairwinds’ Personnel, directors or officers) within one year after the cause of action has accrued or within one year after the termination of this Agreement, whichever is earlier.
12.14 Notices. Notices to the parties under the SOF and this Agreement are accepted only when sent to the parties as follows:
12.15 Survival
The following sections of this Agreement will survive their termination: sections 3 (intellectual property, access and use); 9 (disclaimers); 10 (limitation of liability); 11 (indemnification); 12.1 (reservation of rights); 12.3 (confidentiality); 12.5 (assignment); 12.7 (export regulations); 12.8 (successors); 12.10 (entire agreement); 12.12 (governing law); 12.13 (dispute resolution and time limitation).
