BY COUNTERSIGNING A COPY OF THIS END USER LICENSE AGREEMENT (THIS "AGREEMENT") OR BY CLICKING "I ACCEPT THE TERMS AND CONDITIONS OF THE END USER LICENSE AGREEMENT" AT THE TIME OF INSTALLING OR USING ALL OR ANY PORTION OF THE PRODUCTS, YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE (I) WITH THE TERMS OF THE PURCHASE ORDER AND THIS AGREEMENT, (II) TO BE BOUND THEREBY AND (III) TO COMPLY THEREWITH. IF YOU ARE ENTERING INTO A PURCHASE ORDER AND/OR THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH COMPANY OR OTHER ENTITY, ITS AFFILIATES AND ALL USERS WHO ACCESS GSX' PRODUCTS, TO THIS AGREMEENT, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH COMPANY OR OTHER ENTITY, ITS AFFILIATES AND ALL USERS OF GSX' PRODUCTS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREMEENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE GSX' PRODUCTS.
From time to time GSX and you may prepare and issue papers ancillary to this Agreement, e.g. you or Gsx may issue Purchase Orders, acceptance letters, forms, notices, etc. in order to set up the use of the Products, to facilitate invoicing and bill payment and/or for other purposes. It is understood that, unless otherwise mutually agreed in writing by GSX and you, all such correspondence issued or accepted by either party shall be governed by the terms specified in this Agreement. It may be specifically agreed that such other written documents SUPPLEMENT OR SUPERSEDE ALL OR PORTIONS OF THIS AGREEMENT.
- 1.1 "Affiliate" means any person who directly or indirectly through one or more entities, controls or is controlled by or is under common control with any of the parties.
- 1.2 "Internal Network" means a private, proprietary network resource accessible only by employees and individual contractors (i.e. temporary employees) of an entity or similar business association. Internal Network does not include portions of the Internet or any other network community open to the public, such as membership or subscription driven groups, associations, and similar organizations.
- 1.3 "Licensed Platforms" mean the specific platforms for which you purchase a license according to the Purchase Order(s) (such as Domino, Exchange, Sharepoint, etc.).
- 1.4"Licensed Licensed Servers" mean the number of computer server(s) for which you purchase a license according to the Purchase Order(s).
- 1.5 "CAL Users" mean the number of users for which you purchase a license according to the Purchase Order(s).
- 1.6 "Licensed Views" mean the number of monitoring consoles for which you purchase a license according to the Purchase Order(s).
- 1.7 "Products" mean the Software, the customer services, and the maintenance services available to you pursuant to this Agreement.
- 1.8 "Purchase Order(s)" means the written offer made by GSX (or its Affiliate GSX Groupware Solutions, Inc., Cambridge, MA, USA) to End User for the Products (including the price, payment terms and conditions, and, if any, the initial maintenance fees), duly accepted and executed by you.
- 1.9 "Software" means the computer software programs (excluding source code) and software documentation created and/or developed by or for the account of GSX or any Affiliate of GSX, or any supplier or licensor of GSX, as of the date hereof (until discontinued) or at any time in the future (until discontinued), for which you purchase a license according to the specifications set out in the Purchase Order(s).
- 1.10 "Trial Version" means a version of the Software, so identified, to be downloaded, installed and used only to review, demonstrate and evaluate the Software for a limited time period. The Trial Version may have limited features, may lack the ability for you to save the end Product, and will cease operating after a predetermined amount of time due to an internal mechanism within the Trial Version.
2. Software License
- 2.1 You are granted the licenses expressly specified in the Purchase Order(s). Such licenses are granted only subject to (i) the transmission to GSX of a duly dated and executed original copy of this Agreement or (ii) the acceptance via Internet by checking the box "I accept the terms and conditions of the End User License Agreement" during the installation process of the Software. You undertake to download, install and use the Software only within the scope permitted by the terms and conditions of (i) the licenses granted in the Purchase Order(s) and (ii) the terms and conditions set out in this Agreement. Depending on the Software's licensing mechanism, the Purchase Order(s) shall specify any or all of (i) the Product(s) licensed, (ii) the number of CAL Users, (iii) the number of Licensed Servers, and (iv) the designation of the Licensed Platforms of the Software. You undertake not to use the Software in a manner inconsistent with its design or documentation and the licenses purchased.
- 2.1.1 If the Software is a Trial Version: GSX hereby grants, and you accept, the right and license to download, install and use the Software by entering the key access code delivered by GSX for demonstration, evaluation and training purposes. The Trial Version of the Software shall be limited to specific Licensed Platforms as well as to a maximum number of Licensed Servers, CAL Users or Licensed Views as per the Software's licensing mechanism. A license for the Software may neither be shared, installed, nor used concurrently for additional platforms, servers, User CALs or monitoring consoles. The license is limited to the trial period of one (1) month, unless otherwise expressly agreed by GSX, and is non-exclusive and non-transferable. You may not use such Software after any applicable time-out period has ended, unless you have purchased it. You undertake not to download, install or use more than once any trial version of the Software. You hereby acknowledge that from time to time the Trial Version may be a release candidate, i.e. a Software which is available but not yet final and subject to modifications or adjustments.
- 2.1.2 If the Software is the commercial version: Subject to payment of the License Fee (as defined under Section 5), GSX hereby grants, and you accept, the right and license to download, install and use the Software by entering the key access code delivered by GSX for (i) the number of CAL Users, (ii) the number of Licensed Servers, (iii) and the Licensed Platforms expressly specified on the Purchase Order(s) or otherwise purchased at any time in the future. The license is worldwide, non-exclusive and, except as expressly authorized pursuant to the terms of this Agreement, non-transferable.
- 2.1.3 If the Software is rented: Subject to payment of the License Fee (as defined under Section 5), GSX hereby grants, and you accept, the right and license to download, install and use the Software by entering the key access code delivered by GSX for (i) the number of CAL Users, (ii) the number of Licensed Servers, (iii) the Licensed Platforms expressly specified on the Purchase Order(s) or otherwise purchased at any time in the future, and (iv) for the time period specified in the Purchase Order(s). The license is limited to the rental period specified in the Purchase Order(s) and is non-exclusive and non-transferable. You may not use such Software after the applicable time-out period has ended, unless you have renewed the rental or purchased the Software. The license is worldwide, non-exclusive and, except as expressly authorized pursuant to the terms of this Agreement, non-transferable.
- 2.2 End User Information. You undertake, at the time of providing your personal information when downloading and installing the Software or filling in any Purchase Order(s) to provide GSX (and/or its Affiliate GSX Groupware Solutions, Inc.) with (i) the exact official name of the company or other entity party to this Agreement, (ii) the exact first name and surname of the representative(s) who will execute and deliver the Purchase Order(s) and this Agreement, being specified that only representatives authorized to act for and on behalf of such company or other entity may execute the Purchase Order(s) and this Agreement, (iii) the exact address of the registered office of such company or other entity, (v) the email address on which such company may be reached, and (vi) the fax number on which such company or other entity may be reached. Should any of the above be amended, you undertake to notify GSX (respectively, as the case may be, GSX Groupware Solutions, Inc.) of any such amendment. Should you fail to do so, any notification sent to you at the address, email address or fax number provided to GSX (respectively, as the case may be, GSX Groupware Solutions, Inc.) shall be deemed to have been properly delivered to you.
- 2.3 If a GSX Affiliate or a third party (such as a GSX' agent or distributor) downloads or installs the Software for you, and thus checks the box "I accept the terms and conditions of the End User License Agreement", you are deemed to have authorized such third party to validly represent you to enter into this Agreement for your own account and on your behalf.
- 2.4 Server Use. You may download, install and use the Software on the number of Licensed Servers which you purchased a license for and within your Internal Network only for use of the Software initiated by an individual from a computer within the same Internal Network only as permitted by Sections 2.1.1, 2.1.2 and 2.1.3 respectively. By way of example, the foregoing does not permit you to download, install or use (either directly or through commands, data or instructions) the Software: (i) from or to a computer not part of your Internal Network, (ii) for enabling Web hosted workgroups or services available to the public, (iii) by any individual or entity to use, download, copy or otherwise benefit from the functionality of the Software unless licensed to do so by GSX, (iv) as a component of a system, workflow or service accessible by more than the number of CAL Users, or (v) for operations not initiated by an individual user (e.g. automated server processing). You may however provide your authorized consultants, agents, auditors, counsels and other representatives temporary access to the Products for the purpose of providing you assistance.
- 2.5 CAL Users. The total number of users able to use the Software on such Licensed Servers may not exceed the number of CAL Users for which you purchased the Software as per the Purchase Order(s). You undertake to communicate to GSX any increase in the number of users of the Software so that the License Fee may be adapted accordingly. At any time, GSX may ask you to provide them with the exact number of actual users of the Products.
- 2.6 Licensed Platforms. The license is sold for the Licensed Platform(s) specified on the Purchase Order(s). In case you wish to change the platform, you undertake to communicate to GSX (or, as the case may be, GSX Groupware Solutions, Inc.) any such change so that the License Fee may be adapted accordingly.
- 2.7 Backup Copy. GSX recommends you to make regular backup copies of the .FDB files (Firebird database files).
3. Restrictions and Requirements
- 3.1 Notices. Any permitted copy of the Software that you make must contain the same copyright and other proprietary notices that appear on or in the Software.
- 3.2 No Modifications. You may not modify, port, adapt, translate, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of, the Software.
- 3.3 No Unbundling. The Software may include various applications, utilities, and components, may support multiple platforms and languages, and may be provided to you in multiple copies. Nonetheless, the Software is designed and provided to you as a single product to be used as a single product on computers as permitted by the Purchase Order(s) and the terms set out in Section 2. You are not required to install all component parts of the Software, but you may not unbundle the component parts of the Software for use on different computers. You may not unbundle or repackage the Software for distribution, transfer or resale.
- 3.4 No Transfer. Except for any sale, transfer or assignment to one of your Affiliates, or by way of merger or acquisition involving you, you agree not to rent, lease, sell, sublicense, assign or transfer your rights in the Software, or authorize any portion of the Software to be copied onto another individual or legal entity's computer except with GSX' prior written consent. Any sale, transfer or assignment shall be subject to the conditions that: (a) you transfer (i) the Purchase Order(s), (ii) this Agreement, and (iii) all of the Software (including all component parts, the documents, any copies, updates, upgrades, prior versions and all other Products provided together with the Software); (b) you retain no upgrades, updates or copies, including backups and copies stored on a computer; and (c) the receiving party accepts the terms and conditions of the Purchase Order(s) or this Agreement and any other terms and conditions under which you purchased a valid license to the Software. You may not sell, transfer or assign any Trial Version of the Software.
- 3.5 Trial Version. Unless otherwise provided herein, you shall not (a) in the aggregate, download, install or use more than one copy of the Trial Version of the Software, (b) download, install or use the Trial Version of the Software under more than one username, (c) alter the contents of a hard drive or computer system to enable the use of the Trial Version of the Software for an aggregate period in excess of the trial period for one license to such Trial Version, (d) disclose the results of software performance benchmarks obtained using the Trial Version to any third party without GSX' prior written consent, (e) use the Trial Version for any application deployment or ultimate production purpose, or (f) use the Trial Version of the Software for a purpose other than the sole purpose of determining whether to purchase a license to a commercial or education version of the software; provided, however, notwithstanding the foregoing, you are strictly prohibited from downloading, installing or using the Trial Version of the Software for any commercial training purpose.
- 3.6 Compliance with Laws. You undertake to comply with all applicable laws, orders, and regulations of any governmental authority with jurisdiction over your activities in connection with the Purchase Order(s) and this Agreement. Without limiting the generality of the foregoing, you acknowledge that the Products provided under the Purchase Order(s) and this Agreement may be subject to export laws and regulations of Switzerland and other countries, and any use or transfer of the Products must be in compliance with all such applicable regulations. You will not download, install, use, transfer, transmit or export the Products except in compliance with all applicable Swiss export laws or any other applicable export laws, restrictions, or regulations (the "Export Laws"). In addition, if the Software were to be identified as an export controlled item under the Export Laws, you represent and warrant that you are not a citizen of, or located within, an embargoed or otherwise restricted nation and that you are not otherwise prohibited under the Export Laws from receiving the Software.
4. Upgrades and Updates
- 4.1 If the Software is an upgrade or update to a previous version of a GSX Software, you must possess a valid license to such previous version in order to download, install and use such upgrade or update. After you download and install such upgrade or update, you may continue to use any such previous version only if (a) the upgrade or update and all previous versions are installed on the same computer, (b) the previous versions or copies thereof are not transferred to another party or device unless all copies of the update or upgrade are also transferred to such party or device, and (c) you acknowledge that any obligation GSX may have to support the previous version(s) may end upon the availability of the upgrade or update. No other use of the previous version(s) is permitted after installation of an upgrade or update. Upgrades and updates may be licensed to you by GSX with additional or different terms.
- 4.2 If this copy of the Software is an upgrade or update from an earlier version of the Software, it is provided to you on a license exchange basis. You agree by your download, installation and use of such copy of the Software to voluntarily terminate your earlier end user license agreement with respect to such prior license to the Software and to accept that the use of the earlier version of the Software shall hence foreword be subject to the terms and conditions of this Agreement. You agree not to continue to install or use such prior license of the Software or not to transfer it to another person or entity (unless such transfer is pursuant to Section 3.4.
5. License Fees
- 5.1 Unless otherwise specified in the Purchase Order, prices indicated on any offer for Products (by GSX or GSX Groupware Solutions, Inc.) are net of any duties, charges and taxes (i.e. any export/import/customs duties, shipping/transportation charges, value added/sales/use taxes, and any other charges/taxes imposed by local/national or other legal authorities).
- 5.2 For the use of the Products in accordance with the terms and conditions of this Agreement you shall pay to GSX (or to GSX' distributor or agent or to GSX Groupware Solutions, Inc. as the case may be) the license fee(s) set forth in the Purchase Order(s) (the "License Fee"). The License Fee is to be paid in total (100%) within thirty (30) days of your receipt of the invoice for the Products.
- 5.3 For each Product for which you wish to purchase maintenance services as defined under Section 6, you shall pay to GSX (or to GSX' distributor or agent or to GSX Groupware Solutions, Inc. as the case may be) an annual maintenance service fee. The first maintenance service fee is payable together with the License Fee within thirty (30) days of your receipt of the relevant invoice. The maintenance service fee for any subsequent one- or several-year term is payable in advance and within thirty (30) days after receipt of the relevant invoice.
- 5.4 Any amount due but not received by GSX (or by GSX Groupware Solutions Inc. if the invoice was issued by the latter) will accrue interest from thirty (30) days after the date of invoice to the date of payment at the interest rate (pro-rated on a daily basis) of 1.5% per month. GSX and GSX Groupware Solutions Inc. shall have the right to set-off any amounts due under the Purchase Order(s) and/or hereunder which are not paid when due against any amounts owed to you by GSX or by GSX Groupware Solutions Inc.) pursuant to this Agreement or any other agreement with GSX or any of its Affiliates. In case any amount due is not received by GSX (or, as the case may be, by GSX Groupware Solutions Inc.) within sixty (60) days after the date of invoice, GSX (or, as the case may be, GSX Groupware Solutions Inc.) shall be entitled to terminate this Agreement and the right to download, install and use the Software immediately.
- 5.5 In the event you dispute in good faith any portion of GSX' invoice (or, as the case may be, of GSX Groupware Solutions Inc.'s invoice), you must pay the undisputed portion of the bill and submit a written claim for the disputed amount documenting the basis of your claim. All claims must be submitted to GSX (or, as the case may be, to GSX Groupware Solutions Inc.) within thirty (30) days of receipt of the invoice. You waive the right to dispute the charges not disputed within the time frame set forth above.
6. Maintenance Service (if applicable)
Subject to the purchase of GSX' maintenance service as set forth in the Purchase Order(s), GSX shall during the period of time for which you have purchased such maintenance services provide:
a) support during office hours, by phone or e-mail as specified in the Purchase Order(s) and/or on the website;
b) a 24-hour, seven-day per week emergency hot line number as specified in the Purchase Order(s) and/or on the website;
c) all relevant updates, upgrades, intermediate versions and fixes for each Product; and
d) any password, ID, code, e-mail address or telephone number in order to enable you to benefit from the services listed above.
7. Intellectual Property Rights
- 7.2 In the event that new inventions, designs or processes evolve in performance of or as a result of the license of the Products, you acknowledge that the same shall be the property of GSX. You shall not during or at any time after the expiry or termination of this Agreement in any way question or dispute the ownership by GSX thereof.
- 7.3 The structure, organization, and source code of the Software are the valuable trade secrets and confidential information of GSX and its licensors and suppliers. The Software is protected by law, including but not limited to the copyright laws of Switzerland and other countries, and by international treaty provisions.
- 7.4 GSX and other trademarks contained in the Software are trademarks or registered trademarks of GSX in Switzerland and/or other countries. Third party trademarks, trade names, product names and logos may be the trademarks or registered trademarks of their respective owners. You may not remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels in the Software. This Agreement does not authorize you to use GSX' or its licensors' or suppliers' names or any of their respective trademarks.
- 7.5 You represent and warrant that you have issued internal policies and procedures in order to protect the Intellectual Property Rights in all of the Products, and shall maintain these policies and procedures throughout the term of this Agreement. You may concurrently use the Products on a non-designated computer for the sole purposes of testing the Products or the interactions with your other products or systems, for disaster recovery testing or for similar testing and product ageing prior to being moved to your production environment.
- 7.6 You shall indemnify GSX fully against all liabilities, costs and expenses which GSX may incur as a result of work done in accordance with your specifications involving infringement of any third party Intellectual Property Right.
8. Warranty Disclaimer and Limitation of Liability
- 8.1 GSX does not guarantee that the Software is error-free or will operate without interruption.
- 8.2 GSX MAKES NO EXPRESS WARRANTIES TO YOU REGARDING THE SOFTWARE OR OTHER PRODUCTS. THE SOFTWARE IS BEING PROVIDED TO YOU "AS IS" WITHOUT WARRANTY OF ANY KIND. GSX DISCLAIMS ALL WARRANTIES WITH REGARD TO THE SOFTWARE OR OTHER PRODUCTS, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, MERCHANTABLE QUALITY, OR NONINFRINGEMENT OF THIRD-PARTY RIGHTS.
- 8.3 The Software is not designed, intended or licensed for use in hazardous environments requiring fail-safe controls, including without limitation, the design, construction, maintenance or operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, and life support or weapons systems. GSX expressly disclaims any express or implied warranty of fitness for such purposes.
- 8.4 IN NO EVENT SHALL GSX BE LIABLE TO YOU FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, OR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOSS OF CUSTOMERS, LOST PROFITS, LOST REVENUES OR ANTICIPATED SAVINGS OR EARNINGS, interference with business or cost of purchasing replacement services) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF GSX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF THE USE OF, OR INABILITY TO USE THE SOFTWARE OR OTHER PRODUCTS, OR the performance or failure to perform BY GSX OF any provision of THIS AGREEMENT, whether or not caused by the acts or omissions of GSX, its employees or agents.
- 8.5 NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY GSX, ITS DISTRIBUTORS, AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY PROVIDED HEREIN.
- 8.6 In the event that any exclusion contained in this Agreement shall be held to be invalid for any reason and GSX becomes liable for loss or damage that may lawfully be limited, such liability shall be limited to the greater of (i) CHF 2,500 or (ii) the amount of the License Fee paid by your for the Software that caused such damage.
- 8.7 GSX does not exclude liability for death or personal injury to the extent only that the same arises as a result of the negligence of GSX.
- 8.8 In all cases, the warranty period expires on the 1st (first) anniversary (12 months) of the purchase date of the Products.
- 8.9 Third Parties. IN NO EVENT WILL BLACKBERRY, OR ANY THIRD PARTY MERCHANT OF RECORD, OR OTHER ANY RESELLOR, DISTRIBUTOR, AGENT, CHANNEL PARTNER, AND ASSOCIATED SERVICE PROVIDER HAVE ANY LIABILITY WHATSOEVER ARISING OUT OF OR CONNECTED TO THE LICENSED MATERIALS OR ANY OTHER PRODUCTS OR SERVICES FURNISHED HEREUNDER, INCLUDING, WITHOUT LIMITATION, IN RELATION TO THE SALE, DISTRIBUTION, OR USE THEREOF, OR THE PERFORMANCE OR NON-PERFORMANCE OF THE LICENSED MATERIALS. THESE PARTIES SHALL BE THIRD PARTY BENEFICIARIES IN RESPECT OF THIS PROVISION.
9. Confidential Information
- 9.1 All information, data, drawings, specifications, documentation, software listings, source or object code which GSX may have imparted and may from time to time impart to you relating to the Products (other than the ideas and principles which underlie the Products) is proprietary and confidential. You hereby agree that you shall use the same solely in accordance with the provisions of this Agreement and that it shall not at any time during or for a period of five (5) years after termination or expiration hereof, disclose, copy, convey or otherwise transfer the same, whether directly or indirectly, to any third party without GSX' prior written consent. You shall cause your officers, directors, employees, agents, and advisers to comply with the confidentiality undertaking hereunder and shall take all steps to ensure the secrecy of such confidential information.
- 9.2 The foregoing provisions shall not prevent the disclosure or use by you of any information which (i) is or becomes generally known to the public by any means other than a breach of your obligations hereunder; (ii) was previously known to or received by you from a third party, which was not subject to similar confidentiality undertakings to GSX; or (iii) is requested by a competent court or arbitral tribunal.
10. Force Majeure
- 10.1 GSX shall not be liable to you nor shall any other remedy be extended in respect of anything which, apart from this provision, may constitute a breach of the terms of this Agreement arising by reason of force majeure (i.e. any event beyond a party's reasonable control, including acts of war, earthquakes, hurricanes, floods, fires or other similar casualties, embargos, riots, terrorism, sabotage, strikes, governmental acts, insurrections, epidemics, failures of power, restrictive laws or regulations, court orders, condemnation, failure of the Internet or other event of a similar nature). If GSX is unable to provide the Products for a period in excess of thirty (30) consecutive calendar days due to an event of force majeure, then GSX (or GSX Groupware Solutions, Inc., as the case may be) or you may cancel the relevant Purchase Order(s) upon written notice to the other party, and all parties shall be released from any further future liability for such Purchase Order(s).
- 11.1 GSX may terminate this Agreement (and any Purchase Order(s)) by written notice addressed to you, (i) if you are in breach of any term, condition or provision of this Agreement or required by the applicable law and fail to remedy such breach (if capable of remedy) within thirty (30) days of having received written notice of such breach from GSX, (ii) in the case set out in Section 4.2, (iii) in the case set out in Section 5.4, or (iv) in case of bankruptcy, insolvency, liquidation, receivership or winding up proceeding initiated by or against you.
- 11.2 Upon termination, you shall within fourteen (14) days after the date of termination of this Agreement return or destroy (as GSX shall instruct) the Products and all updates, upgrades or copies thereof and shall pay to GSX all costs and expenses, including legal and other fees incurred and all arrears of fees, charges or other payments arising in respect of the Products, this Agreement or otherwise. GSX may send you the uninstallation procedure instructions, which you undertake to apply and comply with.
- 11.3 Sections 3 (Restrictions and Requirements), 5 (License Fees), 7 (Intellectual Property Rights), 8 (Warranty Disclaimer and Limitation of Liability), 9 (Confidential Information), 11 (Termination), and 14 (Miscellaneous) shall survive termination of this Agreement.
12. Compliance with Licenses
- 12.1 You agree that, no more than once every twelve (12) months, GSX or its authorized representatives shall, upon ten (10) days' prior notice to you, have the right to inspect your records, systems, and facilities to verify that your use of any and all GSX Software is in conformity with your valid licenses from GSX. For example, GSX has the right to those of your records useful to determine whether the number of users and the number of servers does not exceed the number of CAL Users and of Licensed Servers. If such verification process discloses that your use is not in conformity with a valid license, you shall immediately request valid licenses to bring your use into conformity.
- 12.2 GSX may at any time ask you for (i) the actual number of users of the Software, (ii) the actual number of servers on which the Software is installed, and (iii) the actual platform on which the Software is being used. You shall respond to such request within thirty (30) days. Should you fail to do so, GSX has the right to (i) terminate this Agreement or (ii) suspend the license for an undefined time period.
13. Internet Connectivity and Privacy
- 13.1 Automatic Connections to the Internet. The Software may cause your computer, without additional notice, automatically to connect to the Internet and to communicate with a GSX Website for purposes that may include providing you with additional information, features and functionality or providing GSX with information concerning the use, functioning, or other features of the Software. Unless otherwise specified in Sections 13.2 and 13.3, the following provisions apply to all automatic Internet connections by the Software:
a) When the Software automatically connects to the Internet, an Internet protocol address ("IP Address") that is associated with your current Internet connection is sent to a GSX Website;
b) When the Software automatically connects to the Internet, no personally identifiable information is sent except to the extent that IP Addresses may be considered personally identifiable in some jurisdictions; and
- 13.2 Updating. The Software may cause your computer, without additional notice, automatically to connect to the Internet (intermittently or on a regular basis) to check for updates or upgrades that are available for download to and installation on your computer and to let GSX know the results of installation attempts.
- 13.3 Use of GSX Online Services. The Software may cause your computer, without additional notice, and on an intermittent or regular basis, automatically to connect to the Internet to facilitate your access to content and services that are provided to you by GSX. In addition, the Software may, without additional notice, automatically connect to the Internet to update downloadable materials from these services so as to provide immediate availability of these services even when you are offline.
- 13.4 Transfer of Data. Because the Internet is an inherently open and insecure means of communication, any data transmitted over the Internet may be susceptible to interception and alteration. GSX makes no guarantee regarding, and assumes no liability for, the security and integrity of any data transmitted over the Internet, including any data or information transmitted via any server designated as "secure".
All notices, instructions and other communications between the parties made in connection with the Purchase Order(s) (if issued by GSX) and this Agreement shall be sent by e-mail, fax, registered mail, hand delivery or courier services to the other party to the address stated on the Purchase Order(s) or to such other address as any party shall substitute for such purposes by notice given to the other party in accordance herewith.
- 14.2 Assignment; Successors
You may not assign any rights or delegate any duties under this Agreement without GSX's prior written consent, and any attempt to do so without consent will be nul and void. You hereby expressly acknowledge and agree that GSX may assign its rights and obligations hereunder, as well as the underlying contractual relationship – i.e. this Agreement, to any of its Affiliates, without your consent.
This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. Nothing in this Agreement, express or implied, is intended to confer on any person other than the parties hereto or their respective successors and assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement.
The invalidity, illegality or unenforceability of any provision of this Agreement and the Purchase Order(s) shall in no way affect the validity, legality or enforceability of any other provision thereof. The parties undertake to negotiate in good faith with a view to replace such invalid, illegal or unenforceable provision with another provision that best reflects the intentions of the parties.
The failure by either party to exercise or enforce any provision of this Agreement or of the Purchase Order(s) shall not be deemed to be a waiver of the application of any such provision or of a right nor to operate so as to bar the exercise or enforcement of any such provision or right on any later occasion. Any provision contained in the Purchase Order(s) or this Agreement may only be waived by a document signed by the party waiving such provision.
This Agreement (and the Purchase Order(s) in the case where the Purchase Order(s) is entered into with GSX), constitute the entire Agreement between the parties hereto with respect to the subject matter hereof and supersede and replace all prior agreements, oral or written, between the parties relating to the subject matter hereof.
- 14.6 Governing Law and Place of Jurisdiction
The purchase Order(s) and this Agreement will be governed by and construed in accordance with the laws of Switzerland, without regard to the United Nations Convention on the International Sale of Goods. Any dispute arising out of or in connection with The purchase Order(s) or this Agreement shall be submitted to the exclusive jurisdiction of the courts of the canton of Geneva, Switzerland. Notwithstanding the above, GSX may submit any dispute to any court of competent jurisdiction in accordance with the applicable conflicts of law rules.