The following service terms and conditions (the “Terms and Conditions”) shall be deemed incorporated by reference into each Subscription Order between the customer identified thereon (“Customer”) and (1) VMware, Inc., as successor in interest to Apteligent, Inc. (“VI”) or (2) VMware International Limited (“VIL”), as of the last date of signature below (the “Effective Date”). The Terms and Conditions and the applicable Subscription Order shall be collectively known as the “Agreement”. “VMware” means VMware, Inc., a Delaware corporation, if the billing address for your Subscription Order is in the United States, or VMware International Limited, a company organized and existing under the laws of Ireland, if the billing address for your Subscription Order is outside the United States. Capitalized terms shall have the meanings defined in the Agreement.
1.1 “App Users” means the users of the Customer App(s).
1.2 “Customer App(s)” means the mobile application(s) of Customer identified in the Subscription Order.
1.3 “Content” means any and all services, files, information, data, or other content uploaded to the Service by Customer or Users or by VMware (acting upon Customer’s instructions and on Customer’s behalf as part of the Service), including but not limited to Customer Data and App User Data, but does not include third party content.
1.4 “Fees” means the Service fees payable by Customer to VMware, as described in the Subscription Order.
1.5 “Infringement Claim” means any claim by a third party that any VMware software used to provide the Service infringes any patent, trademark, or copyright of the third party, or misappropriates a trade secret of the third party (but only to the extent that the misappropriation is not a result of Customer’s actions), under the laws of: (a) the United States, (b) Canada, (c) European Economic Area member states, (d) Australia, (e) New Zealand, (f) Japan, or (g) the People’s Republic of China.
1.6 “Integration Code” means the software (including without limitation code and scripts) downloadable by Customer from the Site that is configured by Customer and included in the Customer App(s) to enable data to be transmitted from the Customer App(s) to the Platform and the related documentation.
1.7 “Materials” means all materials (a) provided to Customer or (b) created or developed, in each case, in connection with or arising from the Service or the Agreement.
1.8 “Platform” means the hosted service made available through the Site that allows for performance monitoring and management to be performed for the Customer App(s) and the documentation therefor.
1.9 “Service” means the Platform, which consists of the hosted service made available through the Site and is further described by the Subscription Order.Integration Code.
1.10 “Site” means the Apteligent website located at http://www.Apteligent.com, including without limitation all sub-domains thereof.
1.11 “Subscription Order” means the physical, electronic or online order form, as applicable, which is accepted by VMware and further describes the Service purchased by Customer.
1.12 “User” means any person who uses the Service or accesses Content under authorized accounts created pursuant to Section 5.2, and may include your employees, contractors, service providers, and other third parties.
Apteligent Platform and Integration Code
2.1 Platform. VMware hereby grants Customer, during the Term (as defined in Section 7.1), a limited, non-transferable, non-exclusive right and license to access and use the Platform, for Customer’s own internal business purposes, for the sole purpose of performance monitoring and management of the Customer App(s) in accordance with the Agreement. Customer is responsible for obtaining and configuring all required computer hardware, software and telecommunications services to access the Platform.
2.2 Integration Code License. VMware hereby grants Customer, during the Term, a limited, non-transferable, non-exclusive right and license:
(a) to install and use the Integration Code, for Customer’s own internal business purposes, for the sole purpose of using the Integration Code to provide data from the Customer App(s) to the Platform in connection with Customer’s use of the Service and in accordance with the Agreement; and
(b) to use, reproduce and distribute the Integration Code solely as embedded within the Customer App(s) for the purpose of providing data from the Customer App(s) to the Platform in connection with Customer’s use of the Service and in accordance with the Agreement.
2.3 License Restrictions. Customer shall have no rights or licenses with respect to the Service or the Materials except as expressly provided in the Agreement. Without limiting the generality of the foregoing, except as expressly provided in the Agreement, Customer shall not (a) copy, distribute, rent, sell, lease, lend, sublicense, or transfer the Service or the Materials; (b) make the Service or Materials available to any third party; (c) use the Service or the Materials on a service bureau basis; (d) decompile, reverse engineer, or disassemble the Service or the Materials; (e) alter or modify the Integration Code; (f) create derivative works based on the Service or Materials; (g) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear on the Service or the Materials or during the use and operation of the Service or the Materials. Furthermore, Customer shall not use the Service (i) in a way prohibited by law, regulation, or governmental order or decree, (ii) to violate any rights of others, (iii) to try to gain unauthorized access to, test the vulnerability of, or disrupt the Service or any other service, device, data, account, or network, (iv) to distribute spam or malware, (v) in a way that could harm the Service or impair anyone else’s use of it, or (vi) in a way intended to work around the Service’s technical limitations, recurring fees calculation, or usage limits. If the amount of data transmitted by Customer to VMware through the Service significantly exceeds the average amount of data collected by other customers of the Service at similar subscription levels, VMware reserves the right to throttle the Service or to disable Customer’s account until Customer reduces the bandwidth consumption.
2.4 Verifying Compliance. VMware has the right to verify Customer’s and Users’ compliance with the Agreement. VMware may request information from Customer to assist in that verification, which Customer must provide to VMware. If VMware reasonably believes a problem with the Service may be attributable to any Content or to Customer’s or its Users’ use of the Service, Customer must cooperate with VMware to identify the source of the problem and to resolve the problem.
2.5 Monitoring. VMware may monitor Customer’s and Users’ use of the Service, and collect configuration, performance, usage, and consumption data relating to such use to facilitate delivery of the Service (such as tracking entitlements, providing support, monitoring the performance and stability of the Service’s infrastructure, and preventing or addressing service or technical issues), as well as to improve VMware’s products and services, and Customer’s and Users’ experience. Customer may not block or interfere with any such monitoring.
3.1 Ownership of the Service and the Integration Code. As between VMware and Customer, VMware and its licensors and service providers own and retain all right, title, and interest in and to the Service and any related software, including the Integration Code, all improvements, enhancements, modifications, and derivative works thereof, and all intellectual property rights therein. This includes any information VMware collects and analyzes in connection with the Service. Customer’s rights to use the Service are limited to those expressly granted in the Agreement. No other rights with respect to the Service, any related VMware software, including the Integration Code, or any related intellectual property rights, are implied.
3.2 Ownership of Content. As between VMware and Customer, Customer and Users retain all right, title and interest in and to any Content and all intellectual property rights therein. VMware’s rights to access and use Content are limited to those expressly granted in the Agreement.
3.3 Feedback. VMware may elect in its sole discretion to use, for any purpose, any feedback (such as comments or suggestions) that Customer or any Users provide to VMware regarding the Service. Customer represents that it and any User has the right to give VMware that feedback. Customer, on behalf of itself and all Users, hereby grants VMware a non-exclusive, perpetual, irrevocable, royalty-free, transferable, worldwide right and license, with the right to sublicense, to use, reproduce, perform, display, disclose, distribute, modify, prepare derivative works of, and otherwise exploit the feedback without restriction in any manner now known or in the future conceived, and to make, use, sell, offer to sell, import and export any product or service that incorporates the feedback.
4.1 Data Rights. In connection with the operation of the Service, VMware collects data regarding Customer’s use of the Service (“Customer Data”) and App Users’ use of the Customer App(s) (“App User Data”). Customer grants VMware (and its affiliates and third party vendors) the right to use, reproduce, and distribute the Customer Data and App User Data in connection with Customer’s use of the Service. Customer further grants VMware the right to use, reproduce, and distribute Customer Data and App User Data when it is aggregated with other information and not specifically identifiable to Customer or any App User solely for the purpose of publishing industry reports on various metrics of interest (including, without limitation, crash percentage rate between iOS and Android and latency issues with particular carriers).
4.2 Data Limitations. Customer must not transfer to VMware, and must not modify, configure or use the Integration Code or any other aspect of the Service to track or collect, or to cause to be collected by or transferred to VMware, any App User Data that is personally identifiable information, financial information, health information, medical information, pharmaceutical information, information regarding children under 13 years of age, or other sensitive information (for example, Social Security Numbers), or that is used to target advertising to individual devices or App Users. Notwithstanding the foregoing, Customer may configure the Integration Code to transfer the user IDs or email addresses of App Users in order to assist Customer in providing support to these App Users. Customer shall be solely responsible for ensuring that the Customer App(s) and Customer’s use of the Service, including without limitation Customer’s provision of App User Data to VMware through the Integration Code and any other provision of App User Data to VMware by Customer or on Customer’s behalf, comply with all applicable laws, rules, and regulations. Customer shall obtain and maintain all consents, authorizations and clearances required to permit the transfer of App User Data to VMware as contemplated by the Agreement, and to allow VMware to use the App User Data pursuant to the Agreement. Customer is solely responsible for the Customer App(s), including without limitation all features, data, content, and other materials included in, made available in, or transmitted from the Customer App(s).
4.3 Data Protection and Security. Customer is responsible for ensuring that the security of the Service is appropriate for Customer’s intended use of the Service and the processing of any Content. Customer is responsible for taking and maintaining appropriate steps to protect the confidentiality, integrity, and security of all Content from unauthorized access, use, loss, or destruction. Those steps include (a) controlling access Customer provides to Users, (b) configuring the Service appropriately, (c) ensuring the security of Content while it is in transit to and from the Service, (d) using encryption technology to protect Content, and (e) backing up Content.
5.1 Account Registration. In order to use the Service, Customer will have to register for an account on the Site. Customer agrees that the information Customer provides to VMware upon registration and at all other times will be true, accurate, current, and complete. Customer also agrees that Customer will ensure that this information is kept accurate and up-to-date at all times during the Term.
5.2 Authorized Accounts. Customer may create accounts on the Site with unique log-in credentials for designated users to access and use the Service on Customer’s behalf. Customer is solely responsible at all times for (a) ensuring that all of Customer’s accounts are used solely in accordance with the Agreement, (b) maintaining the confidentiality of all log-in credentials for Customer’s accounts, and (c) for the activities of any person accessing the Platform using any of Customer’s accounts.
Customer agrees to pay VMware all Fees due with respect to Customer’s use of the Service as specified in the Subscription Order. All Fees are payable, in the amount and currency specified in the Subscription Order, not later than 30 days after the date of the invoice. Customer is responsible for paying any and all withholding, sales, value added or other taxes, duties or charges applicable to the Agreement, other than taxes based on VMware’s net income. All Fees are non-refundable except as otherwise provided in the Agreement.
Term; Suspension; Termination
7.1 Term. The “Term” of the Agreement shall commence on the Effective Date and continue for 12 months.
7.2 Suspension. VMware may suspend Customer’s use of the Service if: (a) payment for the Service is not received within 30 days after the date on which payment is due; (b) Customer is in breach of the Agreement; (c) Customer’s use of the Service poses a security risk to the Service or to other users of the Service; or (d) suspension is required pursuant to a subpoena, court order, or other legal requirement. VMware will give Customer notice before any suspension if permitted by applicable law unless VMware reasonably determines that providing notice presents a risk of harm to the Service or to any person or property. Customer will remain responsible for all fees incurred before or during any suspension.
7.3 Termination for Cause. VMware may terminate the Agreement effective immediately upon sending Customer an email notice if Customer: (a) breaches any provision of Section 2.3 (“License Restrictions”); (b) does not resolve the underlying cause resulting in a suspension pursuant to Section 7.2 (“Suspension”) (other than suspension due to a subpoena, court order, or other legal requirement) within 10 days after Customer’s account is suspended; (c) commits a material breach of the Agreement that cannot be cured; (d) terminates or suspends its business; (e) becomes insolvent, admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; or (f) becomes subject to control of a trustee, receiver, or similar authority, or to any bankruptcy or insolvency proceeding.
7.4 Effect of Termination. Sections 1, 3, 4, 6, 7.3 and 8 through 13 of the Terms and Conditions shall survive expiration or termination of the Agreement. Upon termination or expiration of the Agreement for any reason, all licenses granted herein to Customer shall terminate and Customer shall immediately discontinue all use of the Service, and delete or destroy all Materials.
Disclaimer of Warranty
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VMWARE, FOR ITSELF AND ON BEHALF OF ITS AFFILIATES, LICENSORS, AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES RELATING TO THE SERVICE OR TO ANY MATERIALS OR SERVICES PROVIDED TO CUSTOMER UNDER THE AGREEMENT, WHETHER SUCH WARRANTIES ARE EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. VMWARE AND ITS AFFILIATES, LICENSORS, AND SERVICE PROVIDERS DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR FREE FROM DEFECTS, OR THAT THE SERVICE WILL MEET (OR IS DESIGNED TO MEET) CUSTOMER’S BUSINESS REQUIREMENTS. VMWARE DOES NOT COMMIT TO FIX ALL ERRORS. THE SERVICE, OR ANY PART OF IT, IS NOT DESIGNED OR INTENDED FOR HIGH RISK ACTIVITIES.
9.1 Subject to the remainder of this Section 9, VMware will (a) defend Customer against an Infringement Claim, and (b) indemnify Customer from costs, fines, and damages finally awarded against Customer by a court of competent jurisdiction or a government agency, or agreed to by VMware in settlement. Customer will: (i) provide VMWare with notice of any Infringement Claim within a reasonable period of time after learning of the claim; (ii) allow VMware sole control over the claim’s defense and settlement; and (iii) reasonably cooperate in response to VMware’s requests for assistance. Customer may not settle or compromise any Infringement Claim without VMware’s prior written consent.
9.2 If the Service becomes or in VMware’s opinion is likely to become the subject of an Infringement Claim, VMware will at its option and expense: (a) procure the rights necessary for Customer to keep using the Service; or (b) modify or replace the Service to make it non-infringing; or (c) terminate the Agreement and refund any prepaid fees, prorated for the remaining portion of the Term.
9.3 VMware will have no obligation under this Section 9 or otherwise with respect to any claim based on: (a) a combination of VMware software, including without limitation the Integration Code, with non-VMware products or content, including any Content and/or any third party content; (b) use of the Service for a purpose or in a manner not permitted by the Agreement; (c) any modification to the Service made without our express written approval; or (d) any Service Offering provided on a no-charge basis.
9.4 This Section 9 states Customer’s exclusive remedy for any Infringement Claims.
If VMware is subject to any third party claim arising from or relating to (a) any Content, (b) any infringement or misappropriation of any intellectual property rights by Customer or Users in connection with use of the Service, (c) any violation of law by Customer or Users in connection with use of the Service, or (d) Customer’s use or Users’ use of the Service in violation of the Agreement, then Customer will indemnify VMware from costs, fines, and damages finally awarded against VMware by a court of competent jurisdiction or a governmental agency, or agreed to by VMware in settlement of the claim. VMware will (i) provide Customer with notice of the claim within a reasonable period of time after learning of the claim, and (ii) have sole control over the claim’s defense and settlement. Customer will reasonably cooperate in response to VMware’s requests for assistance. Customer may not settle or compromise any indemnified third party claim subject to this Section 10 without VMware’s prior written consent.
Limitation of Liability
11.1 LIMITATION OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL VMWARE, ITS AFFILIATES, LICENSORS, OR SERVICE PROVIDERS BE LIABLE FOR ANY COSTS, COMPENSATION, OR REIMBURSEMENT WITH REGARD TO LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE OF THE SERVICE OR OF ANY CONTENT, OR LOSS OF DATA, FOR ANY REASON INCLUDING POWER OUTAGES, SYSTEM FAILURES, SUPPLY FAILURES BY SERVICE PROVIDERS, OR OTHER INTERRUPTIONS, LOSS OF REVENUE, LOSS OF GOODWILL, BUSINESS INTERRUPTION, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. THIS LIMITATION WILL APPLY REGARDLESS OF WHETHER VMWARE OR ITS AFFILIATES, LICENSORS, OR SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE FOREGOING LIMITATION MAY NOT APPLY TO CUSTOMER.
11.2 LIMITATION OF LIABILITY. VMWARE AND ITS AFFILIATES’ AGGREGATE LIABILITY FOR ANY CLAIM UNDER THE AGREEMENT WILL NOT EXCEED THE GREATER OF: (A) AN AMOUNT EQUAL TO THE TOTAL FEES PAID OR PAYABLE TO VMWARE FOR CUSTOMER’S USE OF THE PARTICULAR SERVICE GIVING RISE TO THE CLAIM IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM, OR (B) FIVE THOUSAND U.S. DOLLARS ($5,000 USD) (OR THE EQUIVALENT IN LOCAL CURRENCY). THE LIMITATIONS OF LIABILITY IN THIS SECTION 11.2 WILL NOT APPLY TO (i) VMWARE’S INDEMNIFICATION OBLIGATIONS UNDER THE AGREEMENT OR (ii) ANY LIABILITY WHICH MAY NOT BE EXCLUDED BY APPLICABLE LAW.
11.3 Further Limitations. VMware’s licensors and service providers have no liability of any kind under the Agreement. Customer may not bring a claim directly against any of them under the Agreement. Customer may not bring a claim under the Agreement more than 18 months after the cause of action arises.
12.1 Confidential Information. “Confidential Information” means non-public, technical, business or other information or materials disclosed or otherwise made available in connection with the Agreement or the Service, that are in tangible form and marked as “Confidential,” or with some similar designation, or provided under circumstances reasonably indicating confidentiality. In the case of VMware, Confidential Information includes all information with respect to the Fees, including without limitation the amounts of the Fees and the payment terms, and login credentials. In the case of Customer, Confidential Information does not, for purposes of the Agreement, include any Content. Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault of or breach of the Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the receiving party without access to, use of or reference to the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party who had no restriction on use or disclosure of such information.
12.2 Use and Disclosure Restrictions. Each party shall not use the other party’s Confidential Information except as necessary to exercise its rights or perform its obligations under the Agreement. Except as otherwise permitted expressly by the Agreement, each party shall not disclose the other party’s Confidential Information to any third party except to those of its employees, and contractors that need to know such Confidential Information for the purposes of the Agreement, provided that each such employee and contractor is under a duty of confidentiality that are at least as protective of Confidential Information as those set forth herein. Each party will use reasonable care to maintain the confidentiality of all Confidential Information of the other party in its possession or control, in the same manner that party ordinarily uses with respect to its own proprietary information of similar nature and importance, but in any event with not less than reasonable care. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to contest such order or requirement or (ii) on an as-needed, confidential basis to its legal or financial advisors. In addition, each party may disclose the provisions of the Agreement: (a) as required under applicable securities regulations and (b) on a confidential basis to current or prospective investors or acquirers of such party.
13.1 Modifications to the Service or Materials. VMware may periodically change (a) the Service or the Materials, (b) the terms of Customer’s access to the Service, or (c) any portion of the Agreement or the Standard Support terms attached hereto as Exhibit A. VMware will post notice of updates on the Site. If VMware makes a material, detrimental change to the Service or Materials, VMware will post notice at least 90 days prior to the effective date of the change. The modified Agreement will become effective as of the date specified in our notice. Customer’s continued use of the Service or the Materials after the effective date of any modification to the Agreement will be deemed acceptance of the modified terms. It is Customer’s responsibility to check the Site regularly for updates.
13.2 Termination. If VMware makes a material, detrimental change to the Service, Materials, or to any part of the Agreement or Standard Support terms, Customer may terminate the Agreement by notifying VMware not later than 30 days after the effective date of the change. If Customer terminates the Agreement pursuant to this Section 13.2, the termination will be effective as of (a) the date VMware receive Customer’s notice or (b) any later date specified in Customer’s notice (but in any event the effective termination date will not be more than 45 days after the date on which VMware receives such notice). If Customer terminates a subscription-based Service pursuant to this Section 13.2 VMware will refund any prepaid fees prorated as of the effective date of the termination, less any discounts not earned as of the effective date of the termination.
13.3 Modifications to Terms and Conditions. If VMware agrees (in our sole discretion) to any modifications to these Terms and Conditions with regard to any Service, those modifications must be in a written agreement signed by both Customer and VMware. Those modifications will continue to apply to future versions of these Terms and Conditions with respect to that Service, unless the written agreement specifies otherwise.
14.1 Export Laws. Each party will comply with all laws applicable to actions contemplated by the Agreement. Customer acknowledges and agrees that the Service is of U.S. origin, is provided subject to the U.S. Export Administration Regulations (including “deemed export” and “deemed re-export” regulations), and may be subject to the export control laws of any other applicable country. Customer represents and warrants that (a) it is not, and is not acting on behalf of, (i) any person who is a citizen, national or resident of, or who is controlled by, the government of any country to which the United States has prohibited export transactions; or (ii) any person or entity listed on the U.S. Treasury Department list of Specially Designated Nationals and Blocked Persons, or the U.S. Commerce Department Denied Persons List or Entity List, or any similar designated persons list published for the jurisdiction in which the applicable data center is located; (b) Customer will not permit the Service to be used for any purposes prohibited by law, including any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons; (c) no Content will be classified or listed on the United States Munitions list or similar list published for the jurisdiction in which the applicable data center is located, or contain defense articles, defense services or ITAR-related data; (d) no Content will require an export license nor is restricted under applicable export control laws from export to any country where VMware or VMware’s service providers maintain facilities or personnel; and (e) Customer is not subject, either directly or indirectly, to any order issued by any agency of the United States government revoking or denying, in whole or in part, Customer’s United States export privileges. Customer must notify VMware immediately if Customer becomes subject to any such order.
14.2 Assignment. Customer may not assign the Agreement, in whole or in part, by operation of law or otherwise, without VMware’s prior written consent, provided that Customer may assign the Agreement in connection with the sale of substantially all of its business assets if (a) Customer gives VMware reasonable notice of any proposed assignment, and (b) the assignee agrees in writing to be bound by the Agreement. Notwithstanding the foregoing, VMware may prohibit any assignment to one of its competitors. Any attempted assignment or transfer of the Agreement without that consent will be void and will be a breach of the Agreement. Subject to the foregoing, the Agreement will inure to the benefit of and shall be binding on the parties’ permitted assignees, transferees and successors.
14.3 Force Majeure. Neither party will be liable for any failure or delay in its performance under the Agreement, except for Customer’s payment obligations, due to causes beyond its reasonable control, including, labor disputes or other industrial disturbances, systemic electrical, telecommunications or other utility failures, earthquakes, storms or other acts of nature, embargoes, riots, acts or orders of government, acts of terrorism or war.
14.4 Notices. All notices under the Agreement by VMware to Customer shall be given by email to the email address associated with Customer’s account, except as otherwise set forth in the Agreement. Customer shall direct legal notices or other correspondence to VMware, Inc., 3401 Hillview Avenue, Palo Alto, California 94304, United States of America, Attention: Legal Department.
14.5 Waiver. A waiver of any provision of the Agreement will only be valid if provided in writing and will only be applicable to the specific incident and occurrence so waived, and will not constitute a waiver of any other provision or later breach. The failure by either party to insist upon the strict performance of the Agreement, or to exercise any term hereof, will not act as a waiver of any right, promise or term, which will continue in full force and effect.
14.6 Severability; Counterparts. If any provision, or portion thereof, of the Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such determination will not impair or affect the validity, legality, or enforceability of the remaining provisions of the Agreement, and each provision, or portion thereof, is hereby declared to be separate, severable, and distinct.
14.7 Governing Law; Jurisdiction. The Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without reference to conflicts of laws principles. The United Nations Convention for the International Sale of Goods does not apply to the Agreement. The Agreement does not affect Customer’s statutory rights that cannot be waived or changed by contract.
14.8 Entire Agreement. The Agreement, constitutes the complete, final and exclusive agreement between the parties with respect to the subject matter hereof, and supersede any and all prior or contemporaneous oral or written representations, understandings, agreements or communications between them concerning the subject matter hereof. Any amendments to the Agreement shall only be valid if in writing and signed by each party. Nothing contained in any Customer purchase order, order acceptance form or other similar document shall in any way modify the Agreement or add any additional provisions to the Agreement.