Terms and Conditions – Master Agreement
Effective Starting: May 5, 2020
This Master Agreement (this “Agreement”) is between Patrowl (as defined below), and you, the party licensing Software and/or receiving Services (“You” or “Customer”) with an effective date as of the date You click to accept these terms (the “Effective Date”). Hereinafter each of Patrowl and Customer may be referred to collectively as the “Parties” or individually as a “Party”.
(a) “Affiliate” means any entity that controls, is controlled by, or is under common control with a Party. “Control” shall mean: (1) ownership (either directly or indirectly) of greater than fifty percent (50%) of the voting equity or other controlling equity of another entity; or (2) power of one entity to direct the management or policies of another entity, by contract or otherwise.
(b) “Documentation” means the then-current official user manuals and/or documentation for the Products available at https://github.com/Patrowl/PatrowlDocs.
(c) “Hosted Services” are a type of service offered through the Patrowl.io (SaaS) platform and include Scans and access to and use of the hosted environment (the “Hosted Environment”).
(d) “Product(s)” means any of the products that Patrowl offers, including Software, Hosted Services, Support Services and Professional Services.
(e) “Professional Services” means services purchased, including consulting services which are relevant to the implementation and configurations of Patrowl Products as well as on-site or virtual training courses. Generally, Professional Services are defined either in a separate SOW or a Services Brief. Professional Services do not include the Hosted Services or Support Services.
(f) “Scan(s)” are a function performed by the Software and/or the Hosted Services on Scan Targets, which are conducted in order to provide data to Customer regarding its network security. “Scan Data” or “Finding” is the resulting information created by the Scan. “Scan Target(s)” or “Asset(s)” are the targets or subjects of a Scan.
(g) “Services Brief” means the document which outlines Patrowl’s basic, pre-packaged, non-customized, installation, or training Professional Services offered under a Patrowl SKU and which do not require a separate SOW. For the avoidance of doubt, Customer may purchase commercial off the shelf SKU-based Professional Services without executing a separate Statement of Work. A “SOW” or “Statement of Work” shall further describe Professional Services, the terms of which may be customized and which shall require execution by the Parties.
(h) “Software” means each software product made available by Patrowl under this Agreement for download. Software includes patches, updates, improvements, additions, enhancements and other modifications or revised versions of the same that may be provided to Customer by Patrowl from time to time.
(i) “Patrowl” means Patrowl SAS having offices at 99 AV ACHILLE PERETTI 92200 NEUILLY-SUR-SEINE, FRANCE, registered under SIREN 883 168 403 at the RCS of Nanterre – France.
- Orders and Transactions.
(a) Reseller Transactions. If Customer purchases Patrowl Products through an authorized Patrowl reseller (a “Reseller”), all terms related to pricing, billing, invoicing and payment (“Payment Terms”) set forth in this Agreement (if any) shall not apply. For the avoidance of doubt, all such Payment Terms shall be as agreed to between Customer and Reseller. To place an order, Customer shall provide the Reseller with a purchase order (or other similar document acceptable to Reseller) in response to a valid quote from such Reseller. Following Reseller’s receipt of such purchase order, Patrowl shall issue a sales order confirmation or other similar order acceptance document (the “Ordering Document”). No order shall be deemed accepted by Patrowl until Patrowl issues the Ordering Document. The Ordering Document shall set forth all Products (and corresponding licensing metrics) purchased by Customer.
(b) Direct Transactions. If the Parties have agreed to transact directly, the following Payment Terms shall apply. Customer agrees to pay all amounts due as specified in a Patrowl invoice. Fees for Hosted Services are charged for access to the Host Environment (as defined herein), not actual usage. Customer further agrees to pay for actual travel and living expenses for Professional Services where Patrowl is conducting on-site work. Payment is due within thirty (30) days from the date of Patrowl’s invoice to Customer. Customer will pay directly or reimburse Patrowl for any taxes (including, sales or excise taxes, value added taxes, gross receipt taxes, landing fees, import duties and the like), however designated and whether foreign or domestic, imposed on or arising out of this Agreement. Notwithstanding the foregoing, Patrowl will be solely responsible for its income tax obligations and all employer reporting and payment obligations with respect to its personnel. Customer agrees to pay Patrowl without deducting any present or future taxes, withholdings or other charges except those deductions it is legally required to make. If Customer is legally required to make any deductions or withholding, Customer agrees to provide evidence of such withholding upon request. If a certificate of exemption or similar document or proceeding is necessary in order to exempt any transaction from a tax, Customer shall provide such certificate or document to Patrowl.
(c) Delivery and Installation. Delivery of Patrowl Products (“Delivery”) shall be deemed to occur on the date of availability for electronic download or electronic access. Patrowl has no duty to provide installation services for Patrowl Products unless installation services are purchased separately.
- Term and Termination.
(a) Agreement Term. This Agreement shall commence upon the Effective Date and continue until terminated in accordance with the terms set forth herein.
(b) License Term and Renewals. The “License Term” is the term of the license or subscription for Products as set forth in the Ordering Document. If this Agreement has been signed by both Parties, then unless otherwise agreed to in writing, any renewal License Term shall be governed by the terms set forth herein. If this Agreement has been accepted via shrink-wrap or click-through, upon any renewal of the License Term, the terms then in effect, available at http://static.patrowl.io/legal/sla/Patrowl-Service_Level_Agreement-Hosted_Services.pdf and http://static.patrowl.io/legal/sla/Patrowl-Service_Level_Agreement-Hosted_Services_Support.pdf (or a successor location), will come into effect and govern the term of such renewal. Customer agrees that use of the Products at the time of such renewal will be deemed full and adequate acceptance of the updated terms.
(c) Termination for Cause. Either Party may terminate this Agreement for cause if the other Party materially breaches this Agreement provided that such breaching Party has received written notice of such breach and failed to cure such breach within thirty (30) days. If this Agreement is terminated for cause by either Party, Customer shall cease to use any Software or Hosted Services purchased hereunder and shall certify to Patrowl that it has returned or destroyed all copies of the Software. If this Agreement is terminated for cause by Patrowl, Customer shall remain responsible for any outstanding payment obligations throughout the rest of the License Term.
(d) Termination for Convenience. Customer may terminate this Agreement for any lawful reason upon ninety (90) days prior written notice to Patrowl. If Customer terminates for convenience, Customer shall not receive a refund and shall remain obligated to pay for Products for which it has previously entered into a transaction as well as any additional payment obligations agreed upon prior to the termination date.
(a) Product-Specific Terms. Pursuant to this Agreement, Customer may receive the right to use various Products. Terms related to Customer’s use of Software are described in Schedule A (Software). Terms related to Customer’s use of Hosted Services are described in Schedule B (Hosted Services). Terms related to the provision of Professional Services are described in Schedule C (Professional Services). For each Product, Customer will have the right to use the corresponding Documentation.
(b) Licensing Model. Product licenses shall be in accordance with the terms of the applicable licensing model as set forth in the Documentation and the Ordering Document, which may include limitations on Scan Targets, License Term, the number of users, seats, licenses and/or types of modules licensed. Product licenses shall commence upon Delivery and shall be either perpetual or subscription in nature. If Customer exceeds the license restrictions, Customer must purchase an upgraded license to allow for all actual or additional usage.
(c) Restrictions on Use. Customer shall not directly or indirectly: (i) decompile, disassemble, reverse engineer, or otherwise attempt to derive, obtain or modify the source code of the Products; (ii) reproduce, modify, translate or create derivative works of all or any part of the Products; (iii) remove, alter or obscure any proprietary notice, labels, or marks on the Products; (iv) without Patrowl’s prior written consent use the Products in a service bureau, application service provider or similar capacity; or (v) use the Products to gather information from Nessus Home scanners. Customer may not use the Products to manage or gather information from Scan Targets not owned or hosted by Customer.
(d) Intellectual Property in Products. This Agreement does not transfer to Customer any title to or any ownership right or interest in the Products. Any rights in the Products not expressly granted in this Agreement are reserved by Patrowl. If Customer provides Patrowl with any comments, suggestions, or other feedback regarding the Product, Customer hereby assigns to Patrowl all right, title and interest in and to such feedback.
(e) Customer System Requirements. In order to use the Products, Customer must meet or exceed the specifications found in the Patrowl General Requirements document, available at https://github.com/Patrowl/PatrowlDocs (or a successor location).
(f) Product Features. Patrowl reserves the right to withdraw features from future versions of the Products provided that: (i) the core functionality of the affected Product remains the same; or (ii) Customer is offered access to a product or service providing materially similar functionality as the functionality removed from the affected Product. The preceding remedies under this Section 4(f) are the sole remedies available if Patrowl withdraws features from the Products.
(g) Telemetry. Customer agrees to provide certain necessary Scan information, which may include the number of Scan Targets managed with the Product for billing purposes, behavioral attributes such as whether or not certain features in the Product are utilized, or other relevant information (“Technical Data”). Patrowl may use Technical Data for reasonable business purposes, including product support, license validation and research and development. Patrowl agrees to only disclose Technical Data which has been properly anonymized.
(a) Support Services. Patrowl shall provide Customer with support services (the “Support Services”) in accordance with Patrowl’s Product Lifecycle Policy, each of which is available at http://static.patrowl.io/sla/ (or a successor location). The Support Services include bug fixes, updates (including new vulnerability plug-ins), or enhancements that Patrowl makes generally available to users of the Products. The Support Services also include the provision of new minor (Example: 1.1.x to 1.2.x, etc.) and major version releases of the Products (Example: 1.x to 2.x, etc.). By default, The Support Services is not available for open-source projects provided and maintained by Patrowl.
(b) Support Fees. Standard Support Services for Products licensed for a finite License Term will be provided at no additional charge beyond the license fee for the duration of the License Term. Support Services for Products licensed on a perpetual basis must be purchased separately in advance. In all cases, premium support may be purchased at an additional charge. If during the course of a perpetual license Customer terminates or fails to renew the Support Services, Customer may, at any time during the term of this Agreement, request that Patrowl reinstate the Support Services provided that Customer pays for the lapsed Support Services in an amount equal to the total fees Customer would have paid for the Support Services between the time Customer’s Support Services lapsed and the then-current date.
(a) Definition. “Confidential Information” means information learned or disclosed by a Party under this Agreement that should reasonably be assumed to be confidential or proprietary, including the Products and the terms of this Agreement. Confidential Information will remain the property of the disclosing Party, and the receiving Party will not be deemed by virtue of this Agreement or any access to the Confidential Information to have acquired any right, title or interest in or to the Confidential Information.
(b) Obligations. Each Party agrees to only use the Confidential Information in connection with this Agreement or a purchase hereunder. The receiving Party agrees to hold the disclosing Party’s Confidential Information confidential and to use at least the same level of protection against unauthorized disclosure or use as the receiving Party normally uses to protect its own information of a similar character, but in no event, less than a reasonable degree of care. Each Party may share Confidential Information with its Affiliates or authorized contractors in the performance of its duties under this Agreement; provided, however, each Party shall be responsible to ensure that such Affiliate or authorized contractors are bound by obligations of confidentiality at least as stringent as those set forth in this Agreement.
(c) Exclusions. Confidential Information shall not include information that: (i) is already known to the receiving Party free of any confidentiality obligation; (ii) is or becomes publicly known through no wrongful act of the receiving Party; (iii) is rightfully received by the receiving Party from a third party without any restriction or confidentiality; /or (iv) is independently developed by the receiving Party without reference to the Confidential Information. Furthermore, if Customer intentionally or unintentionally requests or performs scans on third party Scan Targets, Customer agrees that Patrowl may provide all relevant information to the owner of the Scan Targets of such unlawful or impermissible scanning as well as to relevant legal authorities, and such disclosure shall not be considered a breach of confidentiality.
(d) Information Not to be Disclosed. The Parties agree not to disclose to each other any sensitive, non-public, personally identifiable information (such as social security numbers, personal credit card information or health care data, etc.) which may be the subject of any data privacy regulations as well as any Personal Data of an EU Data Subject as such terms are defined under the European Union General Data Protection Regulation (together, hereinafter, “PII”). Patrowl does not require the transmission or processing of any such PII in order to perform its duties under this Agreement or sell any Products hereunder. If Customer inadvertently or unintentionally discloses any PII to Patrowl, Customer shall identify to Patrowl that it has disclosed PII and Patrowl shall promptly return and/or destroy such PII.
(e) Legal Disclosures; Remedies. The receiving Party may disclose Confidential Information if required to do so by law provided the receiving Party shall promptly notify the disclosing Party so that the disclosing Party may seek any appropriate protective order and/or take any other action to prevent or limit such disclosure. If required hereunder, the receiving Party shall furnish only that portion of the Confidential Information disclosure of which is legally required. The receiving Party acknowledges and agrees that the breach of any term, covenant or provision of this Agreement may cause irreparable harm to the disclosing Party and, accordingly, upon the threatened or actual breach by the receiving Party of any term, covenant or provision of this Agreement, the disclosing Party shall be entitled to seek injunctive relief, together with any other remedy available at law or in equity. The receiving Party will notify the disclosing Party promptly of any unauthorized use or disclosure of the disclosing Party’s Confidential Information.
- Representations and Warranties; Disclaimer.
(a) Warranty of Authority. The Parties hereby represent and warrant that they have the full power and authority to enter into this Agreement.
(b) Products. Product warranties and associated warranty periods are set forth in the relevant Schedules.
(c) Antivirus Warranty. Patrowl represents it has taken commercially reasonable efforts to ensure that the Products, at the time of Delivery, are free from any known and undisclosed virus, worm, trap door, back door, timer, clock, counter or other limiting routine, instruction or design that would erase data or programming or otherwise cause the Products to become inoperable or incapable of being used in the manner for which it was designed or in accordance with the Documentation.
(d) Warranty Disclaimer. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT AND TO THE GREATEST EXTENT PERMITTED BY LAW, PATROWL OFFERS ITS PRODUCTS “AS-IS” AND MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, INTEGRATION, PERFORMANCE AND ACCURACY, AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE MADE TO CUSTOMER FOR CUSTOMER’S BENEFIT ONLY. CUSTOMER’S USE OF THE PRODUCTS IS AT CUSTOMER’S OWN RISK. CUSTOMER UNDERSTANDS THAT ASSESSING NETWORK SECURITY IS A COMPLEX PROCEDURE, AND PATROWL DOES NOT GUARANTEE THAT THE RESULTS OF THE PRODUCTS WILL BE ERROR-FREE OR PROVIDE A COMPLETE AND ACCURATE PICTURE OF CUSTOMER’S SECURITY FLAWS, AND CUSTOMER AGREES NOT TO RELY SOLELY ON SUCH PRODUCTS IN DEVELOPING ITS SECURITY STRATEGY. CUSTOMER ACKNOWLEDGES THAT THE PRODUCTS MAY RESULT IN LOSS OF SERVICE OR HAVE OTHER IMPACTS TO NETWORKS, ASSETS OR COMPUTERS (INCLUDING MODIFICATION OF SCAN TARGETS), AND CUSTOMER IS SOLELY RESPONSIBLE FOR ANY DAMAGES RELATING TO SUCH LOSS OR IMPACT.
- Limitation of Liability.
(a) Direct Damages. The cumulative liability of one Party to the other for all claims arising from or relating to the Products or this Agreement (including without limitation, any cause of action sounding in contract, tort or strict liability) shall be limited to proven direct damages in an amount not to exceed, in the aggregate, the fees paid by Customer to Patrowl for the Products over the twelve (12) months immediately prior to the event giving rise to the claim.
(b) Indirect Damages. Neither Party shall be liable to the other for any indirect, incidental, special, punitive, consequential or exemplary damages regardless of the nature of the claim. This prohibition on indirect damages shall include, but not be limited to, claims based on lost profits, cost of delay, any failure of delivery, business interruption, cost of lost or damaged data, or liabilities to any third parties even if such Party is advised of the possibility thereof.
(c) Carve Outs. The liability caps set forth in Sections 8(a) and 8(b) shall not apply to damages resulting from: (i) damage to real or personal property; (ii) personal injury or death; (iii) fraud or willful misconduct; (iv) indemnification obligations set forth in Section 9 (Indemnification); or (v) Customer’s breach of Section 4(c) (Restrictions on Use).
(d) Limitations; Time Period. Each of the limitations set forth in this Section 8 shall be enforced to the fullest extent of the law. Any laws preventing such limitations shall only apply to the extent required by law and the remaining unaffected terms shall apply in full. Unless expressly prohibited by law, each Party shall have a period of no greater than twelve (12) months from the date the cause of action accrues to bring a claim against the other Party for such cause of action.
(a) Indemnification Obligations. (i) By Patrowl. Patrowl shall (at its sole cost and expense): (i) defend and/or settle on behalf of Customer (including Customer’s officers, directors, employees, representatives and agents); and (ii) indemnify Customer for, any third party claims brought against Customer based upon a claim that Customer’s use of the Products in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights in a jurisdiction which is signatory to the Berne Convention. By Customer. Customer shall (at its sole cost and expense): (i) defend and/or settle on behalf of Patrowl (including Patrowl’s officers, directors, employees, representatives and agents) and (ii) indemnify Patrowl for, any third party claims brought against Patrowl arising out of or relating to Customer’s use of the Products to perform Scans on third party Scan Targets, except to the extent that any such claim or action is caused by a failure of the Products to materially comply with the Documentation.
(b) In Case of Infringement. If Customer’s use of the Products is, or in Patrowl’s opinion is likely to be, the subject of an infringement claim, Patrowl may, in its sole discretion and expense: (i) modify or replace the infringing Products as necessary to avoid infringement, provided that the replacement Products are substantially similar in functionality; (ii) procure the right for Customer to continue using the infringing Products; or (iii) terminate this Agreement and, upon Customer’s return or certified destruction of the infringing Product, provide Customer a pro-rata refund calculated as follows: (x) for infringing Products licensed on a subscription basis, the refund shall consist of any prepaid but unused fees for the remainder of the applicable License Term; or (y) for infringing Software licensed on a perpetual basis, the refund shall consist of a straight line depreciation of the license fee based on a three (3) year useful life. This Section 9 sets forth Patrowl’s sole and exclusive liability and Customer’s sole and exclusive remedy with respect to any claim of intellectual property infringement.
(c) Exclusions. Patrowl shall have no liability with respect to a third party intellectual property infringement claim arising out of: (i) modifications of the Product made to conform with Customer’s specifications; (ii) modifications of the Product made by anyone other than Patrowl or a Patrowl authorized third party; (iii) Customer’s use of the Product in combination with other products or services not provided by Patrowl; (iv) Customer’s failure to use any updated versions of the Product made available by Patrowl; or (v) Customer’s use of the Product in a manner not permitted by this Agreement or otherwise not in accordance with the Documentation.
(d) Requirements. The indemnitor shall only be responsible for the indemnification obligations set forth in this Section 9 if the indemnitee: (i) provides the indemnitor prompt written notice of such action or claim; (ii) gives the indemnitor the right to control and direct the investigation, defense, and/or settlement of such action or claim; (iii) reasonably cooperates with the indemnitor in the defense of such a claim (at the indemnitor’s expense); and (iv) is not in breach of this Agreement. Nothing herein shall prevent the indemnitee from engaging in defense of any such claim with its own legal representation, provided that this does not materially prejudice the indemnitor’s defense. The indemnitor may not settle any claim on behalf of the indemnitee without obtaining the indemnitee’s prior written consent; provided, however, the indemnitor shall not be required to obtain consent to settle a claim which settlement consists solely of: (x) discontinued use of infringing Products and/or (y) the payment of money for which the indemnitor has a duty to indemnify.
- Legal Compliance.
(a) Generally. The Products are intended solely for lawful purposes and use. Each party agrees to perform their respective obligations in a manner that complies with all applicable national, federal, state and local laws, statutes, ordinances, regulations and codes (“Applicable Laws”).
(b) DPA. To the extent applicable, if Patrowl is processing personal data on behalf of Customer as such terms are defined under the European Union’s General Data Protection Regulation 2016/679 then such processing shall be in accordance with Patrowl’s Data Processing Addendum located at https://patrowl.io/legal (or successor location).
- Governing Law; Venue.
This Agreement shall be governed in all respects by the French laws, without regard to choice-of-law rules or principles. Due to the high costs and time involved in commercial litigation before a jury, the Parties waive all right to a jury trial with respect to any issues in any action or proceeding arising out of or related to this Agreement.
- Other Legal Clauses.
(a) Third Parties. Customer may permit a third party (“Customer’s Agent”) to use the Products to perform security services for and on behalf of Customer but solely for Customer’s benefit and solely for Customer’s internal business purposes. Customer shall be fully responsible for Customer’s Agent’s use of the Products including liability for any breaches of the Agreement or use beyond the licensed quantities set forth in the Ordering Document. If Customer elects to utilize a Customer’s Agent to perform Scans on its behalf, then only Customer’s Agent (and not Customer) will be permitted to contact Patrowl Support Services. Patrowl shall have the right to withdraw its consent to the use of any Customer’s Agent in its reasonable discretion.
(b) Notices. Any legal notices or other communication pursuant to this Agreement must be in writing, in English, and will be deemed to have been duly given when delivered if delivered personally or sent by recognized overnight express courier. All notices to Patrowl must be sent to the address described in this Agreement to the attention of the Legal Department (unless otherwise specified by Patrowl). All notices Patrowl sends to Customer shall be at the physical address referenced in this Agreement (or otherwise provided to Patrowl). Patrowl may provide notices with regard to Products via the email address Customer provided during Product registration and Customer hereby consents to receive such communications from Patrowl in an electronic form.
(c) Assignment. Neither Party may assign or otherwise transfer this Agreement without the other Party’s prior written consent, which will not be unreasonably withheld; provided, however, either Party may transfer this Agreement to an Affiliate or in connection with a merger or sale of all (or substantially all) of the stock or other ownership units of such Party.
(d) Force Majeure. With the exception of payment, neither Party shall be liable for any loss or delay (including failure to meet the service level commitment) resulting from any force majeure event, including, but not limited to, acts of God, fire, natural disaster, terrorism, labor stoppage, Internet service provider failures or delays, civil unrest, war or military hostilities, or criminal acts of third parties, and any delivery date shall be extended to the extent of any resulting delay.
(e) Language. The language of this Agreement is English and all invoices and other documents given under this Agreement must be in English or in French to be effective. No translation, if any, of this Agreement or any notice will be of any effect in the interpretation of this Agreement or in determining the intent of the parties. The Parties have expressly agreed that all invoices and related documents be drafted in English or in French. The following shall apply solely for Agreements which are under French Canadian jurisdiction: C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient redigés en anglais).
- Evaluations and NFR Licenses.
(a) Evaluations. If Customer wants to conduct an evaluation, proof of value or other similar trial of Patrowl Products (“Evaluation Products”), Patrowl may (in its sole discretion) provide evaluation licenses for such Evaluation Products in accordance with the following: (i) Customer shall have no obligation to make payment for such Evaluation Product for such evaluation usage; (ii) the license term will expire at the end of the agreed-upon evaluation period, at which time Customer must either return or destroy the Software and cease access to the Hosted Services; and (iii) Patrowl shall have no obligation to provide Support Services. Customers may not use the Evaluation Products to scan third party Scan Targets or provide a service to Customer’s clients.
(b) Technology Partners. Patrowl in its sole discretion may allow Customers who are technology partners (a “Technology Partner”) to obtain an Evaluation license and use such evaluation license to create a interoperability (“Interoperability”) between Patrowl Products and their own products. At the conclusion of the Evaluation Term, Customer may apply for an NFR license at which time Patrowl may convert the Evaluation license to an NFR license. Patrowl’s conversion to an NFR license shall be Patrowl’s sole discretion and may require Interoperability validation by Patrowl. Customer may not use Patrowl’s name or logo without prior written consent and in accordance with Patrowl’s guidelines available https://patrowl.io/legal or a successor location.
(c) NFR. If Customer is a sales partner or Technology Partner to whom a “Not For Resale” or “NFR” license has been granted, Customer’s license to the Product will commence upon delivery and continue for a period of one year (unless the Ordering Document sets forth a different term) and shall automatically renew for consecutive one (1) year terms unless either Party provides the other Party with written notice of its non-renewal of the NFR license at least thirty (30) days before the expiration of the then-current term. Notwithstanding the foregoing, Patrowl may terminate Customer’s NFR license for its convenience upon thirty (30) days’ notice, or immediately should Customer breach any obligations under this Agreement.
(d) NFR Customer Prohibitions. Customer shall not purport to take on any obligation or responsibility, or make any representations, warranties, guarantees or endorsements to anyone on behalf of Patrowl, including without limitation, relating to Patrowl products, software, or services. Except as specifically permitted in this Agreement, Customer shall not state or imply that any of Customer’s products have been endorsed, reviewed, certified or otherwise approved by Patrowl.
(e) NFR Customer Representations. Customer hereby represent and warrant to Patrowl that: (i) Customer will not intentionally harm the reputation or goodwill of Patrowl through any act or omission, and (ii) Customer have used commercially reasonable efforts to ensure that any software, code, algorithm, API, etc., transferred to Patrowl is free from any time bomb, virus, drop dead device, worm, Trojan horse, or trap door that is designed to delete, disable, deactivate, interfere with, or otherwise harm hardware, data, or other programs or that is intended to provide access or produce modifications not authorized by Patrowl.
(f) NFR Customer Responsibilities. Customer shall, at its sole cost and expense, defend (or at its option, settle) and indemnify Patrowl and Patrowl’s subsidiaries and affiliates, and their officers, directors, employees, representatives and agents, from and against any and all third party claims brought against Patrowl based upon a claim that use of Customer’s software or Customer’s product in accordance with this Agreement infringes such third party’s patent, copyright or trademark or misappropriates any trade secret, and shall pay all settlements entered into and damages awarded to the extent based on such claim or action.
This Agreement constitutes the entire agreement between the Parties, and supersedes all other prior or contemporaneous communications between the Parties (whether written or oral) relating to the subject matter of this Agreement. No Customer document or purchase order shall modify, supersede, or become part of this Agreement, or otherwise contractually bind Patrowl unless signed by Patrowl. The provisions of this Agreement will be deemed severable, and the unenforceability of any one or more provisions will not affect the enforceability of any other provisions. If any provision of this Agreement, for any reason, is declared to be unenforceable, the Parties will substitute an enforceable provision that, to the maximum extent possible under applicable law, preserves the original intentions and economic positions of the Parties. Section headings are for convenience only and shall not be considered in the interpretation of this Agreement. Customer agrees that Patrowl may use Customer’s name or logo in a customer list. Customer may not use Patrowl’s name or logo without prior written consent and in accordance with Patrowl’s guidelines. No failure or delay by a Party in exercising any right, power or remedy will operate as a waiver of that right, power or remedy, and no waiver will be effective unless it is in writing and signed by the waiving Party. If a Party waives any right, power or remedy, the waiver will not waive any successive or other right, power or remedy the Party may have under this Agreement. The Parties are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between the Parties. This Agreement is not intended nor will it be interpreted to confer any benefit, right or privilege in any person or entity not a party to this Agreement. Any party who is not a party to this Agreement has no right under any law to enforce any term of this Agreement. Any provision of this Agreement that imposes or contemplates continuing obligations on a party and any section which by its nature is intended to survive will survive the expiration or termination of this Agreement, including Sections 3, 4, 8, 9 and 11.