THIS INTERANA END USER LICENSE AGREEMENT (THE "EULA") GOVERNS ACCESS TO SOFTWARE PROVIDED BY INTERANA INC. ("INTERANA") AND ANY AND ALL UPDATES, UPGRADES, AND MODIFICATIONS THERETO ("INTERANA SOFTWARE"), INCLUDING BUT NOT LIMITED TO INTERANA SOFTWARE: (I) INTERANA PROVIDES FREE OF CHARGE ("FREE SOFTWARE"), AND (II) PURCHASED FROM INTERANA OR ITS CHANNELS ("PAID SOFTWARE"). YOUR ACCESS TO THE INTERANA SOFTWARE WILL BE SUBJECT TO APPLICABLE TERMS IN THIS EULA UNLESS YOU HAVE ENTERED IN TO A SEPARATE WRITTEN AGREEMENT WITH INTERANA FOR THE APPLICABLE INTERANA SOFTWARE. BY EXECUTING AN ORDER FORM (AS DEFINED BELOW) THAT REFERENCES THIS EULA, CLICKING ON THE "I AGREE" BUTTON, DOWNLOADING OR INSTALLING THE SOFTWARE, OR USING THE SOFTWARE, YOU ARE CONSENTING TO BE BOUND BY THIS EULA.
IF YOU AGREE TO THESE TERMS ON BEHALF OF A BUSINESS, YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND THAT BUSINESS TO THIS EULA, AND YOUR AGREEMENT TO THESE TERMS WILL BE TREATED AS THE AGREEMENT OF THE BUSINESS. IN THAT EVENT, "YOU" AND "YOUR" REFER HEREIN TO THAT BUSINESS.
Capitalized terms shall have the meaning defined herein and in any applicable Order Forms.
1.1 “Agreement Term” means the period that commences on the date you enter in to this EULA and, unless terminated earlier in accordance with the terms herein, expires at the end of the last-to-expire License Term.
1.2 “Daily” means the time period measured from midnight to midnight UTC.
1.3 “Daily Event Volume” means the number of Events Ingested into the Interana Software on a Daily basis as specified in the corresponding Entitlement(s).
1.4 “Documentation” means the product documentation made available by Interana on the Interana company website at the following URL: www.interana.com/r/docs
1.5 “Edition” means the particular subset of features of the Interana Software licensed to You as described in the corresponding Entitlement. Editions are described at the following URL: www.interana.com/r/editions
1.6 “Entitlement” means use of the Edition(s) authorized for Your Users during the License Term, subject to the definitions and scopes of Users, Daily Event Volume, License Type, License Term, Retention Period, # of Clusters, and Support Level set forth in the Order Form. The Entitlement is subject the limitations and restrictions in this EULA (including any applicable Order Form) with respect to the Interana Software.
1.7 “Event” means a unique time stamped record Ingested into the Interana Software.
1.8 “Grace Period” means the specific number of days, seven (7), of Daily Event Volume Overage allowed during a thirty (30) day rolling period.
1.9 “Ingest” means the act of acquiring data from an external location such as the network or a file system, and processing such data into a queryable location in the Interana Software data store, or making such data available for the Interana Software data store.
1.10 “Cluster” means a single logical deployment of Interana software in which all data is queryable by all users.
1.11 “License Term” means the duration of the license to the applicable Interana Software as specified in the corresponding Entitlement.
1.12 “License Type” means the particular license purchase type applicable to the Interana Software as specified in the corresponding Entitlement and may be one of: Trial, Early Access or Paid.
1.13 “Order Form” means an order form that references this EULA and has been executed by both Parties.
1.14 “Overage” means any use or access of the Interana Software in excess of the Daily Event Volume.
1.15 “Representatives” means, as to any person, such person’s affiliates and its or their directors, officers, employees, agents, and advisors (including, without limitation, financial advisors, counsel and accountants) bound by a written agreement or other legal obligation to maintain the confidentiality of the Confidential Information disclosed to them as required by the terms of Section 5.
1.16 “Retention Period” means the number of calendar days/weeks/months/years that You are allowed to retain Events for live query access in the Interana Software, as specified in the applicable Entitlement.
1.17 “Services” means the Support Level and any Professional Services that Interana has agreed to provide pursuant to an Order Form.
1.18 “Support Level” means the particular support level applicable to the Interana Software specified in the corresponding Entitlement. The descriptions and scope of each Support Levels are described at the following URL: www.interana.com/r/supportterms (the “Support Terms”).
1.19 “Users” means the number of unique user accounts provisioned by or for use with the Interana Software that are authorized to use or access the Interana Software, as specified in the corresponding Entitlement.
2. SOFTWARE LICENSE & RESTRICTIONS
2.1 License. Subject to Your compliance with the terms and conditions of this EULA, Interana hereby grants to You a limited, non-exclusive, non-transferable, non-assignable and non-sublicenseable license to use the Interana Software and Documentation, according to the corresponding Entitlement(s), in a manner consistent with the Documentation and limitations set forth in this EULA (and any Order Form). You acknowledge and agree that Interana may use a license manager, keys or similar method to monitor and manage Your use of the Interana Software. Interana will provide the Support Level to you in accordance with the corresponding Entitlement.
2.2 Restrictions & Requirements.
(a) You shall not: (i) use the Interana Software except as expressly authorized in this EULA and Your Order Form (if any); (ii) decompile, disassemble or reverse engineer the Interana Software, or otherwise attempt to learn the source code, structure or algorithms underlying the Interana Software, except to the extent required to be permitted under applicable law; (iii) copy, modify, distribute, adapt, or create derivative works of the Interana Software; (iii) rent, lease, loan, sublicense, assign, or resell the Interana Software; (iv) disclose to any third party the results of any benchmark tests or other evaluation of the Interana Software or (iv) authorize or enable any third parties to do any of the above.
(b) Any use of Interana Software that is licensed pursuant to a “Trial” license is strictly limited to internal evaluation and testing purposes only. Any and all production or other use is prohibited.
(c) Any use of Interana Software that is licensed pursuant to an “Early Access” license is strictly limited to internal evaluation and testing purposes only. Any and all production or other use is prohibited. Additionally, You will provide Interana, during and for up to six (6) months after the end of the Agreement Term, with testing results and participate in phone and in-person interviews regarding Your experience with Interana Software that is licensed pursuant to an “Early Access” license.
(d) You agree to delete any and all Events prior to the expiration of the applicable Retention Period. Without limiting the foregoing, Interana may, in its discretion, delete any and all Events after expiration of the Retention Period.
3. TERM & TERMINATION
This EULA, any license rights granted hereunder, and any license keys provided will automatically terminate, with respect to the Interana Software, at the end of the applicable License Term for such Interana Software. Expiration of the license keys will cause the Interana Software to become non-operational at the end of the Term that applies to such Interana Software.
3.1 Termination. This EULA (and any Agreement of which it is a part) and the licenses granted hereunder may be terminated:
(a) by either Party upon written notice if the other Party has materially breached this EULA (or any Agreement of which it is a part) and failed to cure such breach within thirty (30) days written notice from the non-breaching Party;
(b) by You for any reason or no reason by providing written notice to Interana, provided that, in the event of any termination pursuant to this Section 3.1(b) or by Interana pursuant to Sections 3.1(a) or 3.1(c), no amounts You have paid previously will be refunded and you will remain obligated to pay all amounts that remain outstanding for any then-current License Terms that would have been in effect had such termination not occurred; or
(c) by Interana upon written notice to You if You (i) have made or attempted to make any assignment for the benefit of its creditors or any compositions with creditors, (ii) have any action or proceedings under any bankruptcy or insolvency laws taken by or against it which have not been dismissed within sixty (60) days, (iii) have effected a compulsory or voluntary liquidation or dissolution, or (iv) have undergone the occurrence of any event analogous to any of the foregoing under the law of any jurisdiction.
3.2 Effect of Termination. All License Terms will terminate immediately upon termination of this EULA (or any Agreement of which it is a part). Upon any expiration or termination of a License Term, the license to the applicable Interana Software granted in Section 2 shall terminate immediately, and You shall (i) immediately cease use of all such Interana Software and Documentation, and (ii) return to Interana all such Interana Software and related Documentation and other materials and information provided by Interana and any copies thereof made by You. If the EULA (or Agreement of which it is a part) is terminated (i) due to Your breach, You shall pay to Interana all Fees set forth in the Order Form(s); or (ii) by You pursuant to Section 3.1(b), You shall pay to Interana the Fees in accordance with Section 3.1(b). Sections 1, 2.2, 3, 4, 5, 6, 7, 8.1, 8.2(c), 8.3, 9, 11, 12, 13, and 14 and any and all outstanding payments, shall survive the expiration or termination of this EULA (and any Agreement of which it is a part).
Interana and/or its licensors own all worldwide right, title and interest in and to the Interana Software and Documentation, and all copies thereof, including all worldwide intellectual property rights therein. The Interana Software is protected by United States copyright law and international treaties. You will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices appearing in or on the Interana Software as provided.
Confidentiality. “Confidential Information” means any and all non-public, confidential and proprietary information, furnished by one party to this EULA (the “Disclosing Party”) or any of its Representatives to the other party to this EULA (the “Receiving Party”) or any of its Representatives, that is marked in writing (including e-mail), or in other tangible form, as “confidential” or “proprietary.” Confidential Information may include, without limitation, such marked disclosures that relate to patents, patent applications, trade secrets, research, product plans, products, developments, know-how, ideas, inventions, processes, design details, drawings, sketches, models, engineering, software (including source and object code), algorithms, business plans, sales and marketing plans, and financial information. Any Confidential Information disclosed orally shall be identified as confidential at the time of disclosure and confirmed as “confidential” in writing within thirty (30) days. Notwithstanding the foregoing, Confidential Information shall expressly include the terms of this EULA (and any Agreement of which it is a part), the Interana Software, the Documentation and all know-how, techniques, ideas, principles and concepts which underlie any element of the Interana Software or the Documentation and which may be apparent by use, testing or examination. Unless otherwise agreed to in writing by the Disclosing Party, each Receiving Party agrees (a) to keep all Confidential Information in strict confidence and not to disclose or reveal any Confidential Information to any person (other than such Receiving Party’s Representatives who (i) are actively and directly involved in providing or receiving products or services under this EULA (or the Agreement of which it is a part), and (ii) have a need to know the Confidential Information), and (b) not to use Confidential Information for any purpose other than in connection with fulfilling obligations or exercising rights under this EULA (or the Agreement of which it is a part). The Receiving Party shall treat all Confidential Information of the Disclosing Party by using the same degree of care, but no less than a reasonable degree of care, as it accords its own Confidential Information. The parties agree to cause their Representatives who receive Confidential Information to observe the requirements applicable to the Receiving Party pursuant to this EULA with respect to such information, including, but not limited to, the restrictions on use and disclosure of such information contained in this Section 5. Notwithstanding the above, the obligations of the parties set forth herein shall not apply to any information that: was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Receiving Party or any of its Representatives; was known to the Receiving Party free of any obligation of confidentiality before or after the time it was communicated to the Receiving Party by the Disclosing Party; is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; is disclosed with the prior written approval of the Disclosing Party; is or becomes available to the Receiving Party on a non-confidential basis from a person other than the Disclosing Party or any of its Representatives who is not known by the Receiving Party to be otherwise bound by a confidentiality agreement with the Disclosing Party or any of its Representatives or to be under an obligation to the Disclosing Party or any of its Representatives not to transmit the information to the Receiving Party; or is disclosed pursuant to an order or requirement of a court, administrative agency or other governmental body; provided however, that the Receiving Party shall provide prompt written notice of such court order or requirement to the Disclosing Party to enable the Disclosing Party the possibility to seek a protective order or otherwise prevent or restrict such disclosure, and shall use reasonable efforts to cooperate with the Disclosing Party (at the Disclosing Party’s expense) to obtain such protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained, or the Disclosing Party waives compliance in whole or in part, with the terms of this EULA, the Receiving Party and its Representatives shall use reasonable efforts to disclose only that portion of the Confidential Information that is legally required to be disclosed or is the subject of such waiver, and to ensure that all Confidential Information that is so disclosed shall be accorded confidential treatment. The terms and obligations pertaining to confidentiality in this EULA shall survive and remain in full force and effect for a period of five (5) years from the termination or expiration of this EULA, unless the Disclosing Party expressly agrees in writing to release all or part of its Confidential Information from the restrictions imposed by this EULA before such period has elapsed.
6. SOFTWARE VERIFICATION AND AUDIT
At Interana's written request, You will furnish Interana with a certification signed by an officer of Your company verifying that the Interana Software is being used in accordance with the terms and conditions of this EULA and any applicable Order Form. Upon at least ten (10) days prior written notice, Interana may audit your use of the Interana Software to ensure that You are in compliance with the terms of this EULA and any applicable Order Form. Any such audit will be conducted during regular business hours at Your facilities, will not unreasonably interfere with Your business activities and will be in compliance with Your reasonable security procedures. You will provide Interana with access to the relevant records and facilities. If an audit reveals that You have exceeded Your Entitlement during the period audited, then Interana will invoice You, and You will promptly pay Interana any underpaid fees based on Interana's price list in effect at the time the audit is completed. If Your usage exceeds the licensed usage by more than twenty-five percent (25%), then You will also pay Interana's reasonable costs of conducting the audit.
7. LIMITATION OF LIABILITY
EXCLUDING A BREACH OF SECTION 5 (CONFIDENTIALITY), 2.2 (RESTRICTIONS AND REQUIREMENTS), OR 8.1 (PAYMENT): (A) EXCEPT AS SET FORTH IN SECTION 7(B), EACH PARTY'S TOTAL CUMULATIVE LIABILITY TO YOU, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS THAT ARE TO BE PAID BY YOU TO INTERANA HEREUNDER IN THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY; (B) NOTWITHSTANDING 7(A), A PARTY’S TOTAL LIABILITY FOR ANY DAMAGE, LIABILITY, OR COST PURSUANT TO ITS INDEMNIFICATION OBLIGATIONS HEREUNDER WILL NOT EXCEED ONE MILLION DOLLARS ($1,000,000); AND (C) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF USE, DATA, OR PROFITS, BUSINESS INTERRUPTION, COSTS OF PROCURING SUBSTITUTE SOFTWARE, OR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING) ARISING OUT OF OR IN CONNECTION WITH THIS EULA (AND AGREEMENT OF WHICH IT IS A PART) OR THE PERFORMANCE OF THE INTERANA SOFTWARE OR SERVICES, WHETHER SUCH LIABILITY ARISES FROM CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY REMEDY IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
8. PROVISIONS THAT APPLY TO PAID SOFTWARE & SERVICES ONLY
The Payment, Warranty, and Indemnification provisions in this Section 8 apply only if You are a licensee of Paid Software. Licensees of Free Software (including but not limited to Trial and Early Access) do not receive the benefit of the provisions if this Section 8; provided that the warranty disclaimer in Section 8.2(c) applies to all licensees of the Interana Software.
(a) Fees. You shall pay to Interana the applicable fees set forth in the Order Form in respect of the Interana Software and Services (collectively, the “Fees”). Any failure to pay the Fees in accordance with an Order Form will, without limiting any other rights or remedies of Interana hereunder, result in automatic revocation and termination of this Agreement and all rights and licenses granted hereunder.
(b) Records and Audits. You shall maintain complete and accurate books and records in sufficient detail for the determination of the Fees payable to Interana pursuant to this EULA, including complete and accurate books and records showing the information and supporting information with respect to the data and records associated with Daily Event Volume, and all other records reasonably necessary to track the use of Interana Software under this EULA. You agree to maintain such books and records for a period of five (5) years after termination or expiration of this EULA, and to make such books and records available for inspection by Interana upon request. Upon reasonable written notice to You, Interana shall be entitled to (i) inspect and audit Your books and records for the purpose of verifying Your use of the Interana Software as permitted in this EULA; (ii) engage an independent auditor to audit Your use of the Interana Software at Your facilities to verify compliance with the terms of this EULA. Any underpayment revealed by such an audit shall be paid to Interana within thirty (30) days of the audit results. You shall be responsible for the auditor’s costs unless an error in excess of five percent (5%) of amounts that should have been paid is revealed, in which case You shall reimburse Interana for the cost of the audit. Upon request, You agree to provide Interana such additional information as Interana may reasonably request, and to cooperate in all respects with all reasonable requests of Interana’s or its auditors.
(c) Terms. All amounts payable to Interana under this EULA (and any applicable Order Form) shall be paid in United States dollars and shall be due thirty (30) days from the date of invoice. You acknowledge that that all Fees shall be non-refundable.
(d) Taxes; Set-offs. Any and all payments made by You in accordance with this EULA (and any applicable Order Form) are exclusive of any taxes that might be assessed against You by any jurisdiction. You shall pay or reimburse Interana for all value-added, sales, use, property and similar taxes; all customs duties, import fees, stamp duties, license fees and similar charges; and all other mandatory payments to government agencies of whatever kind, except taxes imposed on the net or gross income of Interana. All amounts payable to Interana under this EULA (and any applicable Order Form) shall be without set-off and without deduction of any taxes, levies, imposts, charges, withholdings and/or duties of any nature which may be levied or imposed, including without limitation, value added tax, customs duty and withholding tax.
(a) Interana Warranty & Exclusive Remedy. The Interana Software, when used by You in accordance with the provisions of this EULA and in compliance with the applicable Documentation, will perform, in all material respects, the functions described in the Documentation without any Issues (as such term is defined in the Support Terms) for a period of twelve (12) months from the date the Interana Software was first delivered to You (such period, the “Warranty Period”). You shall report to Interana, pursuant to the notice provision of this EULA, any breach of the warranties set forth in this Section 8.2 during the relevant Warranty Period. In the event of a breach of warranty by Interana under this EULA, You must report such breach during the Warranty Period, and Your sole and exclusive remedy, and Interana’s entire liability, shall be prompt correction of Issues or, if such correction is not possible, replacement of the Interana Software in order to minimize any material adverse effect on Your business.
(b) Limitations of Warranties. No warranty or indemnification shall apply where the basis for indemnification, or the Issue or non-conformance by the Interana Software, is caused by: (a) any use of the Interana Software which is not in conformity with the provisions of this EULA or in substantial compliance with the Documentation; (b) any repair, modification or installation of the Interana Software not made or expressly authorized by Interana; or (c) the use or attempted use of software other than the most current version supported by Interana and made available to You under the terms of this EULA. Replacement or repair of an Interana Software product shall not extend its warranty period beyond the original warranty expiration date.
(c) Disclaimer of Warranty. Interana does not represent or warrant that the Services or the operation of the Interana Software (or any portion thereof) will be uninterrupted or error free, or that the Services or Interana Software (or any portion thereof) will operate in combination with other hardware, software, systems or data not provided by Interana, except as expressly specified in the applicable Documentation. Interana does not provide assistance on the general use of the Interana Software or problem diagnosis if You are not current in Your payment obligations. COMPANY ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.2(a), INTERANA MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE INTERANA SOFTWARE OR SERVICES, OR THEIR CONDITION. INTERANA IS FURNISHING THE WARRANTIES SET FORTH IN SECTION 8.2(a) IN LIEU OF, AND INTERANA HEREBY EXPRESSLY EXCLUDES AND DISCLAIMS, ANY AND ALL OTHER EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES, WHETHER UNDER COMMON LAW, STATUTE OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY AND ALL WARRANTIES AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
8.3 Interana Indemnification.
(a) Indemnity. Interana will defend, indemnify and hold You harmless from and against any damage, liability or cost (including reasonable attorneys' fees) resulting from any third party claim that the Paid Software, when used by You as authorized in this EULA, infringes, violates, or misappopriates any third party's patent, copyright, trade secret or trademark rights (each, an “Infringement Claim”). In the event of any damage, liability or cost for which Interana is obligated to indemnify You hereunder, Interana shall have sole control of the defense and all related settlement negotiations, and You shall promptly notify Interana of the claim and reasonably cooperate with Interana in the defense and/or settlement thereof at Interana's expense; provided that You may participate in such defense using Your own counsel, at Your own expense.
(b) Additional Remedies. Should any Interana Software become, or in Interana’s opinion be likely to become, the subject of any Infringement Claim, then You will permit Interana, at Interana’s option and expense: to procure for You the right to continue using the Interana Software; to replace or modify the Interana Software or portion thereof to be non-infringing; or to take any other action reasonably deemed advisable by Interana related to such alleged infringement. In the event none of these remedies is available and/or practical, Interana may, in its sole discretion, terminate the license and return to You the license Fees paid for the infringing licensed copies with respect to the applicable Licensed Term, reduced on a prorated basis for each month the Interana Software is used during the applicable Licensed Term.
(c) Exclusions. Notwithstanding any other provision in this EULA, Interana shall have no obligation to indemnify or reimburse any Indemnified Party with respect to any Infringement Claim to the extent arising from (i) use of any Interana Software in combination with any products or services other than those provided or approved by Interana to You under this EULA; (ii) modification of the Interana Software after delivery by Interana to You, except for such modifications performed by or expressly approved in writing by Interana; (iii) use of any version of the Interana Software other than the most current version made available by Interana to You hereunder; (iv) the failure of any Indemnified Party to use any Updates, corrections or enhancements to the Interana Software that are made available by Interana to You hereunder; or (v) detailed, non-discretionary designs or specifications provided to Interana by You that necessarily caused such Infringement Claim. You agree to reimburse Interana for any and all damages, costs and expenses incurred as a result of any of the foregoing actions.
9. CUSTOMER INDEMNIFICATION
You will defend, indemnify and hold Interana and Interana’s affiliates, employees, directors, and agents harmless from and against any damage, liability or cost (including reasonable attorneys' fees) resulting from any third party claim that results from any data, information, or content You provide to Interana (including but not limited to any breach or allegations of conduct that would be a breach of Section 12.2. In the event of any damage, liability or cost for which You are obligated to indemnify Interana hereunder, You shall have sole control of the defense and all related settlement negotiations, and Interana shall promptly notify You of the claim and reasonably cooperate with You in the defense and/or settlement thereof at Your expense; provided that Interana may participate in such defense using its own counsel, at Interana’s own expense.
You agree to comply fully with all U.S. export laws and regulations to ensure that neither the Interana Software nor any technical data related thereto nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
11. GOVERNMENT RESTRICTED RIGHTS
The Interana Software and Documentation are “commercial items” as that term is defined in FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. If the Interana Software and Documentation are being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the Interana Software and Documentation will be only those specified in this EULA.
12.1 Database. You acknowledge and agree that Interana and the Interana Software are not the database of record for You, and You shall not rely on or consider Interana or the Interana Software as the sole source of, or a complete copy of Your data.
13. USE OF NAME FOR MARKETING PURPOSE
You agree that Interana shall be allowed to print, transmit and/or publicize details of its relationship with You as a licensee of the Interana Software, including promoting its services by means of reference to its provision of the Interana Software to You.
This EULA shall be governed by and construed in accordance with the laws of the State of California, without giving effect to the principles of conflict of law. The United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this EULA will be brought exclusively in the federal or state courts located in the Northern District of California and the parties hereby consent to personal jurisdiction and venue therein. Neither Party assign or transfer this EULA or any rights granted hereunder, by operation of law or otherwise, without the other Party’s prior written consent, and any attempt to do so without such consent will be void; provided that, notwithstanding the foregoing, each Party may assign this EULA without consent to a third-party that merges with or acquires such Party or that acquires all or substantially all of such Party’s assets. This EULA is intended for the sole and exclusive benefit of the Parties and is not intended to benefit any third party. This EULA and the Order Form (if any), and the terms referenced in this EULA and any such Order Form, constitute the complete and exclusive understanding and agreement between the Parties regarding its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, relating to its subject matter. Any waiver, modification or amendment of any provision of this EULA will be effective only if in writing and signed by duly authorized representatives of both parties. Should any term(s) or condition(s) of this EULA be held to be invalid or unenforceable by a court of competent jurisdiction, the remaining terms and conditions of this EULA will remain in full force and effect. All notices or approvals required or permitted under this EULA will be in writing and delivered by overnight delivery service with signature required, or by certified mail, and in each instance will be deemed given upon receipt. All notices or approvals will be sent to the addresses set forth in the applicable Order Form or invoice or to such other address as may be specified by either party to the other in accordance with this section. If You have not entered in to an Order Form, Interana’s notice address is 305 Walnut St., Redwood City, CA 94063 (Attn: General Counsel) and Your address is the address you provide when you register for the Interana Software. Neither party shall be liable for failure to perform any of its obligations under this EULA (except payment obligations) during any period in which such Party cannot perform due to fire, earthquake, flood, any other natural disaster, epidemic, accident, explosion, casualty, strike, lockout, labor controversy, war, embargo, riot, civil disturbance, act of public enemy, act of nature, the intervention of any government authority, any failure or delay of any transportation, power, or for any other similar cause beyond either Party’s control. In the case of failure to perform, the failing Party shall promptly notify the other Party in writing of the reason for and the likely duration of the failure. The performance of the failing Party's obligations shall be suspended during the period that the cause persists, and each Party shall use commercially reasonable efforts to avoid the effect of that cause. In connection with this EULA each Party is an independent contractor and as such will not have any authority to bind or commit the other. Furthermore, neither this EULA, nor any terms and conditions contained herein, shall be construed as creating a partnership, joint venture or agency relationship or as granting a franchise.