TAUSIGHT™ CLOUD PRODUCTS TERMS
Last Updated: September 30, 2021
The Tausight Cloud Products Terms (together with the Order Form, the “Agreement”) is by and between each customer that accesses or uses Tausight’s Products or Services (“Customer”) and Tausight, Inc. (“Tausight”) and governs Customer’s and its Users use of the Products and related Services. The Agreement is effective as of the date Customer purchases a subscription to the Products or any Services by executing an Order Form or otherwise first accesses or uses Tausight’s Products or Services (“Effective Date”). These Cloud Products Terms may be updated from time to time and will be posted on Tausight’s website; updates will not apply until the renewal date of the Subscription Term or one year from the date such updates are posted, whichever occurs first. By using the Products, Customer (or User, on behalf of Customer) attests that it has the authority to enter into this Agreement and accepts and agrees with these Cloud Products Terms.
1. DEFINITIONS. Capitalized terms not defined in this Section 1 (Definitions) will have the meanings as set forth elsewhere in this Agreement.
1.1 “Customer Data” means data in Customer’s files on Endpoints made available by Customer to Tausight for scanning and analysis by the Software Agent to assess possible Customer uses of PHI. Customer Data remains on Customer Endpoints and is not copied to, moved to or stored on Tausight’s systems.
1.2 “Documentation” means the instructional documents generally provided by Tausight to assist its customers in their use of the Products.
1.3 “Endpoint” means any device or system that connects to Customer’s computer networks and where the Software Agent will be deployed. A listing of supported Endpoints is available from Tausight.
1.4 “Fees” means the fees, prices, charges, and other amounts for the Products and Services as set forth in an Order Form.
1.5 “Intellectual Property Rights” means any patents, copyrights, trademarks and service marks, trade secrets, moral rights, and any other intellectual property or proprietary rights arising at any time under the laws of any jurisdiction.
1.6 “Order Form” means the document issued by Tausight or its authorized reseller to Customer for purchasing a subscription to the Products or Services or such other ordering document or statement of work, as agreed to in writing and executed by both Parties. An Order Form contains information such as the type and quantity of Product subscriptions and Services purchased; the Subscription Term; pricing and applicable Fees; payment terms; any Subscription Quantity, and other obligations of the Parties.
1.7 “Party” or “Parties” means Tausight and/or Customer, as applicable.
1.8 “Products” means Tausight’s cloud-based Software-as-a-Service (SaaS) offerings (including their Software Agents and related Documentation) as identified on an Order Form.
1.9 “Results” means the informational output displayed on the Product front-end resulting from Customer’s use of the Products, but does not include any dashboards, report templates, user interface designs, or other components of the Products.
1.10 “Service Level Agreement” means the document that describes Tausight’s performance commitment for the availability of the Products, as set forth at https://www.tausight.com/legal/sla.
1.11 “Services” means product support services and such other services as may be provided by Tausight to Customer in connection with the Products.
1.12 “Software Agent” means the software agent components of the Products that are downloaded and deployed on Endpoints.
1.13 “Subscription Quantity” means the maximum number of Endpoints on which the Software Agents can be deployed, as set forth on an Order Form.
1.14 “Subscription Term” means the term as set forth in the applicable Order Form during which Customer has a subscription to the Products, and includes the initial and any renewal terms.
1.15 “System Data” means Endpoint configuration and activity data, and file and system metadata. System Data does not include Customer Data.
1.16 “User” means a named individual person who is authorized by Customer to access and use the Products on Customer’s behalf. Users may include employees and individual contractors of Customer and of its third-party service providers.
2.1 Products. Tausight grants Customer a non-exclusive, non-transferable, non-sublicensable right to access and use the Products during the applicable Subscription Term (a) solely for Customer’s own internal end-user business purposes, (b) within the Subscription Quantity, and (c) subject to Customer’s compliance with this Agreement, including the timely payment of Fees. The Products are Software-as-a-Service (SaaS) offerings and as such (except for Section 2.2 (Software Agents) below), Customer does not have a right to obtain a copy of the underlying software. The Products are deemed delivered when they are made available for access by Customer. The terms “purchase” or “sale” in this Agreement as they relate to the Products mean the purchase or sale of a license or subscription to access and use the Products during the applicable Subscription Term, and not the purchase or sale of any Intellectual Property Rights therein.
2.2 Software Agents. Use of the Products require Software Agents to be downloaded or deployed locally on Endpoints. Customer must allow such Software Agents to integrate with such programs and devices necessary to provide data to the Products. In such an event, Tausight grants to Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software Agents (in object code form only) during the Subscription Term solely for the purpose of using the Products in accordance with this Agreement.
2.3 Restrictions. Except to the extent necessary for the download and deployment of Software Agents as permitted in Section 2.2 (Software Agents) above, Customer must not and must not authorize or assist any party to (a) gain access to the software components of the Products; (b) download or make any copies of such software; (c) translate, disassemble, decompile, reverse engineer, alter or modify such software. Further, Customer must not and must not authorize or assist any party to (i) gain unauthorized access to Tausight’s or its service providers’ systems or networks; (ii) circumvent or remove any security mechanisms; (iii) use the Products for the benefit of any third party; (iv) conduct any test or analysis on the security or performance of the Products, including any benchmark tests, or disclose the results of such tests or analysis to any third party; or (v) use the Products or other materials or information provided by Tausight to create works that are competitive with or provide similar functionality to the Products. Customer also agrees to be bound to any Subscription Quantity or other limitations as set forth on the Order Forms.
2.4 Evaluation Use. If Customer has been or is provided access to any Products or components thereof on a trial, evaluation, non-production, beta or other testing basis (collectively, the “Evaluation Products”), CUSTOMER’S RIGHTS TO ACCESS AND USE SUCH EVALUATION PRODUCTS ARE LIMITED TO SUCH RESPECTIVE PURPOSES AND MAY BE TERMINATED BY TAUSIGHT AT ANY TIME AND FOR ANY REASON. THE WARRANTIES, INDEMNITIES AND REMEDIES PROVIDED BY TAUSIGHT UNDER THIS AGREEMENT DO NOT APPLY TO SUCH EVALUATION PRODUCTS OR TO SERVICES RELATED THERETO. EVALUATION PRODUCTS AND RELATED SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY AND ARE USED AT CUSTOMER’S OWN RISK. TAUSIGHT DOES NOT WARRANT THE PERFORMANCE OR SECURITY OF SUCH EVALUATION PRODUCTS OR SERVICES.
2.5 Users; Endpoints. Customer will not make the Products available to anyone than its Users. Each Endpoint used at any time during a Subscription Term is counted in the total number of Endpoints included in a Subscription.
2.6 Service Levels. Tausight will provide the Products in accordance with and subject to the Service Level Agreement.
3. SERVICES. Unless otherwise specified in the Order Form, Tausight will provide help desk support via telephone and email for questions and for reporting any problems or issues about the use of the Products. Customer’s designated contacts for help desk support will be identified by the Parties. Tausight Support will be available Mondays through Fridays except for U.S. federal holidays, from 9:00 AM to 5:00 PM Eastern time.
4.1 Fees. Customer shall pay Tausight the Fees in accordance with the applicable Order Form. Except as specified in this Agreement, including in an Order Form, Fees are nonrefundable and due in full annually on or prior to the start of the Subscription Term and, as applicable, the anniversary or renewal effective dates thereafter as defined in the Order Form. If Customer is purchasing the Products or Services through a Tausight authorized reseller, then the Fees shall be as set forth between Customer and reseller, and Customer shall pay such Fees directly to the reseller.
4.2 Taxes. Unless Customer provides Tausight with a valid certificate of exemption, Customer will pay all applicable sales, use and other taxes levied or based on this Agreement, exclusive of taxes based on Tausight’s net income.
4.3 Late Payments. In the event that the Products are used in excess of the Subscription Quantity, Tausight has the right to charge Customer for such excess usage at Tausight’s then-current list rates or as otherwise set forth on the Order Form, notwithstanding Section 13 (Limitation of Liability) below. If any amounts are not paid or reimbursed when due under this Agreement, the overdue amounts shall bear interest at a rate equal to the lesser of 1.5% per month or the maximum amount allowed until paid.
4.4 Refunds. If Customer terminates this Agreement or any Order Form pursuant to Section 9.1 (Term), 9.3 (Termination), or if Tausight terminates pursuant to Section 10.2 (Remedy), Tausight will refund any prepaid Fees for the remaining unused portion of the Subscription Term and any Fees prepaid for Services not actually performed. If Tausight terminates pursuant to Section 9.3 (Termination), Customer will remain liable for any unpaid Fees for the remaining portion of the Subscription Term and for Services performed.
5. INTELLECTUAL PROPERTY OWNERSHIP.
5.1 Tausight. Tausight and its licensors own all right, title and interest in and to the Products (including its software, user interface, dashboards, and report formats), Software Agents, Services, the technology, methodology, workflow, algorithms, and analytics embodied in any of the foregoing, and all Intellectual Property Rights therein.
5.2 Customer. Customer owns all right, title and interest in and to System Data, Results, and all Intellectual Property Rights therein.
5.3 Feedback. Notwithstanding any other terms herein, all feedback provided by Customer to Tausight related to Products or Services (“Feedback”), may be used by Tausight for any purpose without restriction or payment, and any Intellectual Property Rights inherent in such Feedback are hereby assigned exclusively to Tausight. Feedback excludes any of Customer’s Confidential Information and is provided “as is” without warranty of any kind. Notwithstanding the foregoing, Customer retains rights to use any such Feedback for its own internal purposes.
6. DATA USE & SECURITY.
6.1 Data Use. Customer hereby grants to Tausight a non-exclusive, non-sublicensable (except to Tausight’s contractors and service providers providing services for or on behalf of Tausight), royalty-free right and license (a) to scan and analyze Customer Data on Endpoints via the Software Agents to perform Tausight’s obligations under this Agreement and develop and improve its products and services, (b) to copy, distribute, display, modify, create derivative works of, and otherwise use (collectively, “Use”) System Data to perform Tausight’s obligations under this Agreement, including to create the Results, and (c) to Use System Data and Results to create statistical, telemetry, aggregated and/or anonymized data (“Analytics Data”) and to develop and improve its products and services. For the avoidance of doubt, Analytics Data is not Customer Data, System Data, or Results.
6.2 Data Security. Tausight shall maintain and implement a formal security program in accordance with industry practices designed to protect data from accidental, unlawful, and unauthorized destruction, loss, alteration, disclosure and access. Such measures may include, as appropriate (a) the encryption of data; (b) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of systems and services; (c) a process of regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of data. Tausight will also maintain a business continuity plan that provides for the restoration of both technology and business operations in the event of an unplanned event. Notwithstanding the foregoing in this paragraph, no security or continuity program is flawless and Tausight makes no guarantees that its programs are foolproof or infallible.
7.1 Nonuse/Nondisclosure. A Party shall not disclose or use any Confidential Information of the other Party for any purpose except as permitted in this Agreement or with the other Party’s prior written permission. Each Party agrees to protect the Confidential Information of the other Party in the same manner that it protects its own Confidential Information of like kind (but in no event using less than a reasonable standard of care). If a Party is compelled by law to disclose Confidential Information of the other Party, it shall promptly provide the other Party with prior written notice of such compelled disclosure (to the extent legally permitted) and provide reasonable assistance, at the other Party’s cost, if the other Party wishes to contest the disclosure. If a Party discloses or uses (or threatens to disclose or use) any Confidential Information of the other Party in breach of this Agreement, the other Party shall have the right, in addition to any other remedies available, to injunctive relief to enjoin such acts, it being acknowledged by the Parties that any other available remedies are inadequate.
7.2 Definition. “Confidential Information” includes information on the Order Form, each Party’s business, financial and technical information, information identified or designated as proprietary or confidential at time of disclosure, and information that by its nature would be considered by a reasonable person to be confidential. Tausight’s Confidential Information includes the Products (including its software and Software Agents, screen layouts, dashboards, and report formats), Services, Feedback, and the technology, methodology, workflow, algorithms, and analytics embodied in any of the foregoing. Customer’s Confidential Information includes Customer Data, System Data and Results.
7.3 Exclusions. Notwithstanding the above, Confidential Information shall not include information that: (i) is already in the public domain at time of disclosure or becomes part of the public domain through no fault or wrongful act of the receiving Party; (ii) is rightfully received by the receiving Party from a third party without any obligation of confidentiality or any restriction on use; (iii) is already known to the receiving Party without any obligation of confidentiality or any restriction on use, as evidenced by its written records; or (iv) is independently developed by the receiving Party as evidenced by its written records.
8. CUSTOMER RESPONSIBILITIES. Customer is responsible for maintaining the confidentiality and security of User access credentials and passwords, for all activities under User accounts, and for any noncompliance by Users with Customer’s obligations under this Agreement. Customer shall not: (i) upload or otherwise transmit, display, or provide access to any Customer Data or System Data to the Products that infringes any Intellectual Property Rights of any party; (ii) upload or otherwise transmit to the Products any viruses or any other computer code, files, or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or (iii) interfere with or disrupt the Products.
9. TERM AND TERMINATION.
9.1 Term. This Agreement will continue in effect until expiration or termination in accordance with the Order Form, this Section 9.1 (Term), or Section 9.3 (Termination) below. Unless the Parties otherwise agree in writing, including by executing an updated Order Form, upon the completion of the then-current Subscription Term, the Subscription Term will automatically renew for additional one-year terms at the most recent rates identified in the applicable Order Form. If either Party does not wish to so renew, such Party must provide the other Party with written notice of its election not to renew at least thirty (30) days prior to the expiration date of the then-current Subscription Term. In connection with any renewal term, Tausight reserves the right to change the Fees, and to introduce new charges, upon providing Customer written notice thereof at least sixty (60) days prior to the expiration date of the then-current Subscription Term. If these Cloud Products Terms have been updated by Tausight, such updates will not apply until the earlier of (a) the renewal date of the Subscription Term or sixty (60) days from the date such updates have been posted if the renewal date is within such sixty-day period, or (b) one year from the date such updates have been posted. If Customer does not agree to the updated provisions and the Parties have not otherwise come to an agreement, Customer can opt out of its subscription effective as of the date such updates would take effect by providing Tausight with thirty (30) days’ advance written notice.
9.2 Suspension. In the event of any breach of this Agreement by Customer, including late payment, in addition to any other rights or remedies, Tausight may suspend Customer’s access to the Products and the provision of Services under this Agreement until such breach is cured.
9.3 Termination. If either Party breaches any term or condition of this Agreement, including of any Order Form, the other Party may terminate this Agreement and/or such Order Form upon thirty (30) days’ prior written notice; provided that such termination shall not be effective if such breach is cured during such thirty (30) day period. Notwithstanding the foregoing, if Customer: (i) breaches Sections 2 (Products), 7 (Confidentiality) or 8 (Customer Responsibilities); (ii) becomes insolvent; (iii) makes a general assignment for the benefit of creditors; (iv) ceases conducting business in the ordinary course; or (v) files a petition under bankruptcy law or any other insolvency law providing for the relief of debtors, or any such petition is filed against it, Tausight, in addition to any other remedies available at law or equity, may terminate this Agreement or any Order Form immediately upon written notice to Customer. In the event of a termination of this Agreement under this Section 9.3 (Termination), each Order Form shall simultaneously and automatically terminate unless and to the extent Tausight indicates otherwise in the notice of termination.
9.4 Effect of Termination. Upon any termination or expiration of this Agreement or any applicable Order Form, all licenses and subscriptions purchased under such Order Forms end, Tausight shall no longer provide the applicable Products or Services to Customer, and Customer must cease using the Products. Termination shall not relieve Customer of its obligation to pay all Fees that have accrued or have become payable by Customer hereunder. Customer agrees to delete Software Agents from its Endpoints at Tausight’s written request.
9.5 Survival. Sections 2.3 (Restrictions), 2.4 (Evaluation Use), 4 (Payments, for accrued but unpaid amounts), 5 (Intellectual Property Ownership), 6.1(c) (Data Use), 7 (Confidentiality), 8 (Customer Responsibilities), 9 (Term and Termination), 10 (Indemnification), 11 (Warranties), 12 (Disclaimer of Other Warranties), 13 (Limitation of Liability), 15 (General), and those provisions that govern interpretation of this Agreement shall survive the termination of this Agreement and any Order Form.
10.1 Tausight Indemnification. Tausight will defend, at its cost, any claim made against Customer by a third party that asserts that Customer’s use of a Product in accordance with this Agreement infringes such third party’s Intellectual Property Rights. Tausight will indemnify Customer from actual damages and costs (including reasonable attorneys’ fees) finally awarded against Customer in respect of such claim or settlement amount agreed to be paid in settlement of such claim.
10.2 Remedy. Upon notice of an infringement claim, or if in Tausight’s opinion such a claim is likely, in addition to its obligations under Section 10.1 (Tausight Indemnification), Tausight has the right, at no cost to Customer, to (a) procure the right for Customer to continue using the allegedly infringing Product; (b) replace or modify such Product to make it non-infringing while providing substantially the same functionality and performance; or (c) if Tausight determines that neither option (a) or (b) is commercially reasonable, it may terminate such Product’s subscription upon thirty (30) days’ notice to Customer, and will refund to Customer any prepaid Fees on a pro rata basis for the remaining unused portion of the current Subscription Term. Sections 10.1 (Tausight Indemnification) and 10.2 (Remedy) set out Tausight’s entire obligation and liability, and Customer’s sole and exclusive remedy, with respect to infringement or alleged infringement of Intellectual Property Rights.
10.3 Customer Indemnification. Customer will defend, at its cost, any claim made against Tausight by a third party that asserts that Tausight’s use of Customer Data or System Data under this Agreement infringes such third party’s rights or otherwise violates applicable law or regulation, or that Customer did not have authorizations as warranted under Section 11.2(b) (Customer Warranties). Customer will indemnify Tausight from actual damages and costs (including reasonable attorneys’ fees) finally awarded against Tausight in respect of such claim or settlement amount agreed to be paid in settlement of any such claim. Customer will have no obligation to defend or indemnify any claim which arises solely from a Product itself or is caused by Tausight’s breach of this Agreement.
10.4. Conditions. A Party’s obligations under Section 10.1 (Tausight Indemnification) and Section 10.3 (Customer Indemnification) are conditioned on (a) the indemnified Party giving the indemnifying Party prompt notice of the claim; (b) the indemnified Party giving the indemnifying Party sole control of the defense and all negotiations for its settlement or compromise (provided that this does not require any admission of guilt or liability by the indemnified Party); and (c) the indemnified Party providing the indemnifying Party with reasonable assistance, at the indemnifying Party’s expense. The indemnified Party may, at its own cost, engage counsel of Its choice.
10.5 Exclusions. Tausight will have no obligations under this Section 10 (Indemnification) in respect of any infringement claim that does not state with specificity that a Product is the cause of the infringement, or any infringement claim that arises out of or relates to: (a) any modification of a Product by Customer or to comply with Customer requirements if such claim would have been avoided but for such modification; (b) use or combination of the affected Product with programs, components or products not provided by Tausight or authorized by Tausight in the Documentation if such claim would have been avoided but for such use or combination; (c) use of a Product in any manner that breaches this Agreement or is not in accordance with the Documentation; (d) Customer’s use of Customer Data; or (e) any Customer systems. Customer will have no obligation to defend or indemnify any claim under this Section 10 (Indemnification) which arises solely from a Product itself or is caused by Tausight’s breach of this Agreement.
11.1 Corporate Warranties. Each Party represents and warrants that it has taken all requisite action to approve execution, delivery and performance of this Agreement and that this Agreement constitutes a legal, valid and binding obligation enforceable against it in accordance with its terms.
11.2 Customer Warranties. Customer represents and warrants that (a) Customer has obtained all necessary rights to permit Tausight to access and use Customer Data and System Data in accordance with this Agreement, and (b) it has the appropriate authorizations from the owners of the Endpoints, networks, systems, IP addresses, assets, and/or hardware on which it deploys the Products or which it targets, scans, monitors, or tests with the Products.
11.3 Tausight Warranties. Tausight warrants that, during the Subscription Term: (i) the Products will conform, in all material respects, with the applicable Documentation; and (ii) it will not materially decrease the overall functionality of the Products; and (iii) the Services will be provided with reasonable skill and care conforming to generally accepted industry standards. For any breach of the above warranties, Tausight will, at no additional cost to Customer, use commercially reasonable efforts to provide remedial services to enable the affected Product or Service to so conform, provided that Customer has timely notified Tausight upon discovery of such non-conformance and provides Tausight with a reasonable opportunity to remedy and reasonable assistance in remedying any nonconformance. Tausight makes no warranty regarding third party products or services, for nonconformance caused by parties other than Tausight, or products or services not provided or approved by Tausight. The remedies set out in this Section 11.3 (Tausight Warranties) are Customer’s sole remedies for breach of the above warranty.
12. DISCLAIMER OF OTHER WARRANTIES. Tausight makes no other warranties, express or implied, including, but not limited to, the implied warranties of fitness for a particular purpose, merchantability, quality of information, or non-infringement, and all such warranties are hereby specifically disclaimed. Tausight shall not be liable or responsible for Customer’s or any User’s systems or networks, or for the decisions or actions undertaken by Customer based on its use of Products or Services. Tausight does not warrant that use of the Products will be uninterrupted, error-free, or will meet Customer’s specific needs or requirements. Tausight makes no warranty that all security risks or threats will be detected or reported by the Products or that false positives will not be found. Tausight is not responsible for the performance or availability of the internet or of any risks inherent in internet use.
13. LIMITATION OF LIABILITY. Neither Party shall be liable under this Agreement for aggregate amounts in excess of the amounts paid under this Agreement during the twelve months immediately preceding the date the last claim arises or for any indirect, special, punitive, or consequential damages arising out of or related to this Agreement, even if such Party has been advised of the possibility of such damages. The limitations in this Section 13 (Limitation of Liability) apply to the maximum extent permitted under applicable law, notwithstanding any failure of essential purpose of any limited remedy provided herein. These limitations do not apply to damages resulting from infringement by a Party of the other Party’s Intellectual Property Rights, a breach of Section 7 (Confidentiality), or obligations under Section 10 (Indemnification).
14. PUBLICITY. Tausight may use Customer’s name and logo in its marketing materials and on its website pursuant to Customer’s trademark usage guidelines that are provided to Tausight in advance. The Parties must mutually agree prior to issuing any press release or other public statement regarding this Agreement.
15.1 Independent Contractors. Tausight and Customer are independent contractors, and nothing in this Agreement shall be construed as making them partners or creating the relationships of principal and agent between them, for any purpose whatsoever. Neither Party shall make any contracts, warranties, or representations or assume or create any obligations, express or implied, in the other Party’s name or on its behalf.
15.2 Assignment. Neither Party may assign any of its rights, delegate any of its obligations, or transfer this Agreement or any Order Form by operation of law or otherwise without the prior written consent of the other Party, except to an Affiliate or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets. “Affiliate” refers to any legal entity that controls, is controlled by, or is under common control with a Party. For these purposes, “control” and its correlates mean: (i) the ownership, directly or indirectly, of at least fifty percent (50%) of the issued voting shares; or (ii) the possession, directly or indirectly, of the legal power to direct or cause the direction of the general management and policies of an entity, whether through the ownership of voting securities, by contract or otherwise. A permitted assignment will not be effective unless the assigning Party notifies the other Party of the assignment and has obtained the assignee’s written agreement to be bound by the Agreement. Any assignment, transfer, or delegation (or attempt of the foregoing) in violation of this Section 15.2 (Assignment) is void. All the terms and provisions of this Agreement will be binding upon and inure to the benefit of the Parties, their successors, permitted assigns and legal representatives.
15.3 Force Majeure. Other than payment obligations hereunder, neither Party will be liable for any inadequate performance to the extent caused by a condition that was beyond such Party’s reasonable control (including natural disaster, act of war or terrorism, riot, global health crisis, acts of god, or government intervention) except for mere economic hardship (a “Force Majeure Event”), so long as such Party continues to use commercially reasonable efforts to resume performance.
15.4 Governing Law. This Agreement and each Order Form are governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without reference to conflicts of law principles, and each Party consents and submits to the jurisdiction and forum of the state and federal courts in the Commonwealth of Massachusetts for all Disputes arising out of this Agreement that are not settled or handled by arbitration under Section 15.5 (Dispute Resolution) and waives all objections to venue and personal jurisdiction in these forums for such Disputes; provided, however, that nothing in this Section 15.4 (Governing Law) or Section 15.5 (Dispute Resolution) shall be construed as to deny any Party the right and power to seek and obtain injunctive relief in a court of competent jurisdiction for any breach or threatened breach of the confidentiality or intellectual property obligations in this Agreement.
15.5 Dispute Resolution.
15.5.1 The Parties shall use their respective best efforts to settle amicably any disputes, differences or controversies arising among the Parties out of or in connection with this Agreement (“Disputes”). However, if not so settled, any Disputes (except those regarding Intellectual Property Rights) shall be settled by arbitration as follows in this Section 15.5 (Dispute Resolution).
15.5.2 Disputes shall be referred to and finally resolved by arbitration in accordance with the Rules of the American Arbitration Association (the “AAA”), and judgment rendered by the arbitrator may be entered in any court having jurisdiction thereover. The arbitration shall be conducted in Boston, Massachusetts, unless otherwise agreed by the Parties and shall be conducted before three (3) arbitrators, with one (1) appointed by each Party who will then choose and appoint the third arbitrator by mutual agreement, according to the Rules appointed in the manner provided by the Commercial Arbitration Rules of the AAA. The decision of the arbitrators will be final and binding on the Parties hereto and their successors and assignees.
15.5.3 Where consistent with applicable law, the arbitrator shall have the authority to order the non-prevailing Party to pay the prevailing Party’s attorney’s fees and all costs of the arbitration. The Parties will participate in good faith in a non-binding mediation of their dispute at least thirty (30) days prior to the date of the arbitration hearing. The Parties shall jointly select the mediator but if they are unable to agree on a mediator, then the arbitrator shall appoint the mediator.
15.6 Waiver. No waiver of any right or remedy under this Agreement is effective unless it is in writing. The failure of either Party to require performance of the other Party at any time for any provision will in no way affect such Party’s later right to require performance of such provision, nor be a waiver of any succeeding breach of such provision, nor be a waiver of any other provision.
15.7 Severability. Any provision of this Agreement which is prohibited or unenforceable will be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions of this Agreement, and no such prohibition or unenforceability in any jurisdiction will invalidate such provision in any other jurisdiction. The Parties shall use their best efforts to reform the portions of this Agreement so prohibited or unenforceable to realize the intent of the Parties as fully as practical.
15.8 Construction. All headings are for reference purposes only and will not affect the interpretation of this Agreement. The terms “including,” “such as” and their variations mean “including but not limited to.” Neither this Agreement nor any Order Form is construed in favor or against either Party by reason of the authorship of any provision.
15.9 Notices. Unless specified otherwise herein, (i) all notices must be in writing and addressed to the attention of the other party’s legal department and primary point of contact and (ii) notice will be deemed given: (a) when verified by written receipt if sent by personal courier, overnight courier, or when received if sent by mail without verification of receipt; or (b) upon confirmation that the email was received by the recipient (but not including auto-generated email replies) if sent by email. Each Party shall use reasonable efforts to provide for confirmation of email receipt in case of notice by email. Either Party may change its address or designee for notification purposes by giving notice to the other of the new address or designee and the date upon which such change will become effective. When sent by email, notices to Tausight must be sent to firstname.lastname@example.org.
15.10 Counterparts. This Agreement may be executed in one or more counterparts, each of which is deemed an original. For purposes hereof, an electronic copy (including a portable data format (PDF) copy) of this Agreement, including the signature pages hereto, will be deemed to be an original.
15.11 U.S. Government End Users. The Products and Documentation are “Commercial Items” as that term is defined in the Federal Acquisition Regulation at 48 C.F.R. §2.101, consisting of “Commercial Computer software” and “Commercial Computer software Documentation”, as such terms are used in 48 C.F.R. §12.212 or Defense Federal Acquisition Supplement 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer software and Commercial Computer software Documentation are being licensed to U.S. Government end users: (a) only as Commercial Items; and (b) with only those rights as are granted pursuant to the terms and conditions of this Agreement. Unpublished-rights are reserved under the copyright laws of the United States.
15.12 No Reliance. Customer represents that it has not relied on the availability of any future version of the Products or any future product or service in executing this Agreement or purchasing any Product hereunder
15.13 Entire Agreement. This Cloud Products Terms together with the Order Forms comprise the entire agreement between the parties and supersedes all prior and contemporaneous representations, letters, proposals, discussions, agreements and understandings by or between the Parties. In the event of a conflict between the terms and conditions in this document and any Order Form, they will govern in the following order: (1) the Order Form but only with respect to the Products, subscriptions, and Services described in it; and (2) this document. No individual Order Form will amend this document except with respect to the Products, subscriptions, and Services described in it or amend any other Order Form. This Agreement shall control over any “click-through” agreement or any prior trial evaluation, or testing agreement. This Agreement may be amended only in a writing signed by both Parties. If the Parties have entered into a written agreement for Products or Services that is signed by both Parties, such written agreement will take precedence over this Agreement.