Terms and conditions (“T&C”)

RECITALS

1. Customer desires to obtain from Supplier, and Supplier desires to provide to Customer a license for the use of the following application: YouDesign and any extension packs (“App”) through a subscription.
2. Customer and Supplier have agreed upon certain standard provisions that will govern the App contemplated by this Agreement. 
3. This Agreement including its schedules and any Addenda entered into by the Parties to document the terms and conditions under which Customer agrees to access and use the App and Supplier agrees to license the App.
4. This Agreement supersedes the electronic version accepted by the Customer in the ServiceNow store for the YouDesign software and any extension packs. 

The Parties agree as follows: 

ANY CHANGES TO THE STANDARD TERMS AND CONDITIONS CONTAINED HEREIN MAY CAUSE A PRICE INCREASE. 

RECITALS

1. Customer desires to obtain from Supplier, and Supplier desires to provide to Customer a license for the use of the following application: YouDesign and any extension packs (“App”) through a subscription.
2. Customer and Supplier have agreed upon certain standard provisions that will govern the App contemplated by this Agreement. 
3. This Agreement including its schedules and any Addenda entered into by the Parties to document the terms and conditions under which Customer agrees to access and use the App and Supplier agrees to license the App.
4. This Agreement supersedes the electronic version accepted by the Customer in the ServiceNow store for the YouDesign software and any extension packs. 

The Parties agree as follows: 

ANY CHANGES TO THE STANDARD TERMS AND CONDITIONS CONTAINED HEREIN MAY CAUSE A PRICE INCREASE. 

Definitions 

For the purposes of the Agreement, the capitalized terms below shall have the following meanings: 

“Affiliate” of a Party shall mean an entity: 

1. which is directly controlling such Party; 
2. which is under the same direct ownership or control as such Party; or  
3. which is directly owned or controlled by such Party.
   

For these purposes, an entity shall be treated as being controlled by another if that other entity has fifty-one percent (51%) or more of votes in such entity, is able to direct its affairs and/or to control the composition of its boards of directors or equivalent body. 

“Agreement” shall mean the sections of this executed Agreement and all schedules and addendums hereto, which are hereby incorporated by reference in their entirety, as any of the foregoing may be amended from time to time in accordance with the terms and conditions hereof.  

“App License” refers to the License provided by Supplier for the subscribed to App allowing Customer the right to 

1. install the Supplier Applications on a single authorized production instance of the ServiceNow Platform; 
2. install the Supplier Applications on any number of non-production instances associated with the ServiceNow production instance; 
3. to receive full product features, updates, support, and online documentation within the subscription Term; and 
4. access the Applications through an Embedded Platform Runtime User License (EPRL) to perform read, create, write, update, and delete data required for each end-user

No license under this agreement includes any ServiceNow Platform licenses.  Any needed ServiceNow Platform licenses need to be purchased separately from ServiceNow. 

“Application” or “App” shall mean the software application(s) offered by Supplier under the names:  

1. YouDesign 
2. YouDesign Extension Pack(s), e.g. YouDesign UPMX, YouDesign BPM

These Applications are solely intended and licensed for use on the ServiceNow Platform provided by ServiceNow. The applications are installed as “plugins” from the ServiceNow store on the ServiceNow Platform and cannot run standalone. ServiceNow is not responsible for (and will have no liability to the customer in connection with) the App or this agreement.  

Business Day means any day that is not a weekend or holiday in the United States of America. 

“Contractor” means any subcontractor(s), supplier(s), licensor(s), contract manufacturer(s), or contractor(s) of any Party and its Affiliates.  

“Customer” means any person, company, corporation, or other entity who obtains or intends to obtain a Subscription and License to use any of the Applications and/or Service(s). For purposes of this Agreement, “Customer” shall include Customer’s Affiliates, Service Providers, Agents, and Contractors. 

“Confidential Information” is defined in Section 13 of this Agreement.  

“Disclosing Party” as defined in Section 13 of this Agreement. 

“Documentation” means any and all technical documentation, user manuals, and other materials regarding the Applications located solely online as set out in Section 7 below. 

“Editor” refers to a named user of the App to create, update, write, and delete content. An EPRL is required for each Editor and includes Viewer access.  

“Embedded Platform Runtime User License” or “EPRL” refers to the ServiceNow Embedded Platform Runtime User licenses required by each named End User to access the Application. The EPRL provides the rights through the Applications to use ServiceNow core platform functionalities, e.g., reporting, workflow, etc. Each End User requires a single EPRL per Application. 

“End User” refers to the EPRL Editor and/or EPRL Viewer that will utilize the App on the ServiceNow Platform.   

“Entitlement” means the technical assignment of Customer’s purchased App licenses to its ServiceNow instance(s). After receiving the Customer’s Purchase Order, the Supplier will inform ServiceNow to entitle the licenses on the Customer’s instance(s). Supplier has no influence or responsibility for the entitlement process. 

“Force Majeure Event” means any event or circumstance beyond a Party’s reasonable control, including acts or omissions of the other Party or third parties, natural disasters, health crises such as epidemics and pandemics, riots, war, terrorism, civil disorder, court orders, acts or regulations of governmental bodies, labor disputes (other than those limited to the affected Party's own workforce) or failures or fluctuations in electrical power, heat, light, air conditioning or telecommunications equipment or lines, or other equipment failures, and which it could not have prevented by reasonable precautions or could not have remedied by the exercise of reasonable efforts, provided that the exercise of such reasonable precautions or reasonable efforts would not require the incurrence of any additional cost or expense. 

“Intellectual Property” means any materials, know-how, methodologies, processes, techniques, tools, forms, templates, software (whether written or machine-readable), and Intellectual Property Rights (collectively, “Materials”) that are: (i) owned or licensed by a Party, its subcontractors, or their respective Affiliates; (ii) developed by a Party, its subcontractors, or their respective Affiliates independently of the Services; and (iii) modifications, enhancements, and derivative works of the Materials described the preceding clauses (i) and (ii). 

“Intellectual Property Rights” means all registered and unregistered rights in respect of copyright, industrial and other designs, databases, circuit layouts, trademarks, know-how, confidential information and trade secrets, patents, inventions, discoveries and domain names, and all other intellectual property. 

“License” refers to an App License. 

“Party” or “Parties” in this Agreement, Supplier and Customer including Affiliates, Service Providers, Agents, and Contractors may be referred to individually as a “Party” and together as the “Parties”. 

“Purchase Order” or “PO” means a document issued by Customer in an electronic format containing the unique purchase order number, and in which Customer requests Supplier to deliver Applications and/or Services in a Statement of Work in accordance with the terms and conditions of this Agreement and such Applications and/or Services that are itemized with the corresponding price, ordered quantity, item identification, and time schedule. Any pre-printed general terms and conditions in any such PO shall not apply. 

“Reader” refers to a named End User of the Application able to read content, e.g. form and list views, diagrams, reports, and dashboards. 

“Receiving Party” as defined in Section 13 of this Agreement. 

“ServiceNow” refers to ServiceNow, Inc. 

“ServiceNow Platform” means ServiceNow® hosted software and services. 

“Service Provider” means a company or entity that offers a wide range of information technology (IT) services and solutions to businesses or individuals specializing in delivering comprehensive information technology solutions to clients. These services can include hardware and software procurement, network setup and management, cybersecurity, help desk support, and other IT-related offerings. 

“Subscription” refers to Customer’s right to have access to the App and related Services identified herein, upon acceptance of these T&Cs and payment of the Subscription Fees for the Term of the Subscription and any renewal terms.  The minimum subscription term is 12 months.  

“Supplier” refers to ins-pi Inc & ins-pi GmbH and their respective Affiliates. 

“Viewer” is a user who has read-only access to the Application and can read content, e.g., boards, board content, diagrams, and models but can’t edit or change content. The App includes unlimited Viewer licenses.   

 § 1          OWNERSHIP

The App is protected by copyrights and other intellectual property rights. Customer acknowledges and agrees that all worldwide copyright and other intellectual property rights in the App, and all copies of the App however made, are the exclusive property of Supplier. All rights in and to the App not expressly granted to Customer in this Agreement are reserved by Supplier. There are no implied licenses under this Agreement.    

 § 2          SUBSCRIPTION

Upon payment by Customer of the applicable Subscription Fees, the App will be enabled for Customer’s own internal use and use by Customer’s Affiliates, Contractors, and Service Providers to perform Customer’s internal work and support Customer’s process, during the Term (defined below), through a single authorized production instance of the ServiceNow Platform, and any number of non-production instances associated with the production instance (the App License). Each End-user requires one Embedded Platform Runtime User License (“EPRL”) per App which needs to be purchased through the Supplier as part of the App Subscription. Neither the App Subscription, App License nor the EPRL includes a ServiceNow platform license or subscription, or access to other billable ServiceNow addons, or a license to administrate the ServiceNow Platform. The App License and EPRLs allowing access to your ServiceNow Platform instances of the Licensed App will be entitled by ServiceNow after receipt of the purchase order. Access to the Now™ Platform must be separately purchased from ServiceNow. Customer is not entitled to delivery of a copy of the App apart from its deployment on Customer’s authorized instance(s) of the ServiceNow Platform. 

 § 3          RESTRICTIONS ON USE

Customer may not do (or permit others to do) any of the following:  

1. modify, adapt, alter, translate, or create derivative works of the App, except that Customer may configure and customize the App solely to the extent that it is possible to do so using the features and functionalities of the ServiceNow Platform in their ordinary and intended manner; 
2. merge or otherwise integrate the App with external components or other software i.e. making App part of another application, except for components of the ServiceNow Platform e.g. REST API;  
3. sub-license, lease, rent, loan, assign, or otherwise transfer the App or any license hereunder to any third-party;  
4. host, upload, use, or access the App via a time-sharing, service bureau, virtualization, hosting, or other remote access arrangement, except for Customers authorized instance(s) of the ServiceNow Platform as hosted by ServiceNow or a Managed Service Provider (“MSP”);  
5. reverse engineer, decompile or disassemble the App or otherwise attempt to derive the source code of the App except and only to the limited extent that Supplier provides such source code or that such activities are expressly permitted by applicable law notwithstanding this limitation;  
6. remove, alter, or obscure any confidentiality or proprietary notices (including copyright or trademark notices) of Supplier or its suppliers on, in, or displayed by the App; (g) reproduce or use the App except as expressly authorized under Section 2 and for backup purposes (without limiting the foregoing, Customer may not use the App apart from the ServiceNow Platform); or  
7. circumvent, or provide or use a program intended to circumvent technological measures provided by the Supplier to control access to or use of the App.

 § 4          APPLICATION SCOPE

For the avoidance of doubt, the Customer acknowledges the following: 

1. Supplier does not host or provide a platform as part of this agreement. 
2. The App requires a separate ServiceNow platform subscription. 
3. The Applications are installed as “plugins” from the ServiceNow store on the ServiceNow Platform and cannot run standalone.  
4. The Supplier App is certified by ServiceNow and running fully under its security umbrella.  
5. Each App release, including Hot Fixes and Patches, are certified by ServiceNow, and are exclusively distributed through the ServiceNow Appstore. 
6. The App is inheriting all platform features and security through the EPRL license. 
7. Supplier is not responsible for Customer’s ServiceNow instance. 
8. Supplier cannot access Customer’s instance(s) or data unless Customer grants access to Supplier. 
9. Supplier does not store or host any Customer data. 
10. App does not provide features allowing Supplier access to Customer’s instance or data.  
11. App does not store or send information to Supplier.  
12. Supplier does not host, store, or manage personal data as part of the App. 
13. App is not business critical.
    

 § 5          TECHNICAL SUPPORT 

OBTAINING TECHNICAL SUPPORT ("LOGGING A CASE") 

To obtain technical support from Supplier, the Customer is responsible for complying with the following procedure: 

1. App user finds an Application-related problem and reports it to Customer’s 1st and 2nd level support. 
2. Customer’s 2nd level contact takes ownership of the problem and attempts to find a timely solution, identifying the nature of the problem, including eliminating Customer network, ServiceNow platform, and non-Supplier Application, plugins, and configurations outside of the Application scope as possible problem cause. 
3. Customer’s 2nd level contact reproduces the error if possible and documents the steps needed to do so. 
4. Customer’s 2nd level contact is unable to resolve the problem; the contact activates technical support by logging a case, using one of the Supplier Contact procedures described above to provide the Application Handle, events that led up to the problem, the problem description, and your assessment of the business impact of the problem. 
5. Customer’s 2nd level contact describes to the Supplier the parameters, procedures, and conditions resulting from the problem in sufficient detail to permit the Supplier to isolate the cause of the problem and commit appropriate resources to help isolate the problem. 
6. Customer’s 2nd level contact provides the Supplier with all data files, configuration, and system access and sufficient rights, together with remote access, reasonably believed necessary by the Supplier to reproduce and analyze the problem. If the problem cannot be reproduced, no further action will be taken by the Supplier

Supplier will record delays. The delays below will not be counted in elapsed time: 

1. Excessive delay in testing or deploying a proposed solution due to Customer or Customer’s resource constraints. 
2. Customer delay in supplying sufficient information to commence or continue problem resolution. 
3. Not being able to remotely access Customer’s System to resolve a problem. 
4. If with Customer’s agreement, a fix is deferred to a later patch Release; or a temporary fix is in place, the time to deliver the permanent fix is not included. 

SERVICE EXCLUSIONS 

App Subscription and Technical Support do not include installation, program development, coding, isolation of coding problems, training, assistance to or consulting or implementation of Customer’s App on the System, customization of Supplier tools, or integration of Supplier tools with Customer’s system. Data recovery services are not included as part of the Services, regardless of the cause of data loss. Technical Support is not a substitute for any formal education course and training. Supplier and Customer may plan and implement a training program to train Customer’s Contacts, System administrators, and users on the current App revision. Decommissioning and disposal of App configuration is not included in the Technical Support. Technical Support does not include on-site assistance. 

Supplier shall not be obligated to provide Technical Support if Defects are caused by or related to the following: 

1. Customer’s mishandling, abuse, misuse, or use of the App other than in accordance with Supplier’s operating instructions; 
2. use of the App with other software or ServiceNow releases that were not expressly specified in writing by the Supplier as suited for use with the App; 
3. changes to Customer’s environment in which the App was provided; 
4. actions or omissions of persons other than Supplier; 
5. repair of the App by someone other than the Supplier; 
6. failure to implement all App Updates, App Releases, and other new upgrades and configuration changes in the correct sequence of the App made available to Customer (for the avoidance of doubt, Supplier is not obligated to make available any minimum number of such Updates or Releases); or 
7. the App has been modified by someone other than Supplier unless such modifications were directed or approved by Supplier in writing and made in strict conformance with all specifications and instructions provided by Supplier in such writing; 
8. the App was modified by Supplier in accordance with Customer’s request, specifications, or instructions; or third-party products; or 
9. by Force Majeure event

Supplier shall not be obligated to provide Technical Support, except for the  

1. most recent (Major or Minor) App Release and  
2. supported App Releases published on the App Roadmap only when used with Supplier specified configurations and Supplier recommended ServiceNow releases and internet browser versions. 
   

Supplier shall have no obligation to provide Technical Support if Customer is using any third-party software, e.g., Chrome, that has been superseded by a current release more than twelve (12) months prior to the then-current date. 

The App Documentation is only available online on the Supplier's website:   

• https://docs.youdesign.app 

Supplier has the right to update and remove articles and functionality without notifying Customer. 

Upon acceptance of this Agreement, Supplier hereby grants to the Customer, a License to use the Application subscribed to within the Term of the App Subscription, such License incorporating the terms of this Agreement and specifically including the right to: 

1. install and run the Application on a single authorized production instance of the ServiceNow Platform; 
2. install and run the Application on any number of non-production instances associated with the ServiceNow production instance; 
3. to receive full product features, updates, technical support, and online documentation within the subscription Term; and 
4. access the Application through an Embedded Platform Runtime User License to perform read, create, write, update, and delete data required for each end-user

Supplier acknowledges that the App License also allows Customer’s Service Providers and Contractors access to the Application as necessary to enable their provision of services to Customer, provided that Customer shall be responsible for ensuring compliance with the Agreement by such Service Providers. The App License shall include unlimited viewer access to the Customer users. 

Under the terms specified in Section 2, every End User of the Customer performing editing, creation, or deletion tasks must have an Embedded Platform Runtime User License (EPRL). This Editor license is necessary to operate the App and can be acquired via the Supplier as part of the App Subscription. Should there be a need for extra production instances of the ServiceNow Platform, each additional instance necessitates an extra App Subscription and corresponding App License. 

§8          DEPENDENCIES

1. ServiceNow Requirements: This App necessitates a compatible version of the ServiceNow platform, including at least the basic ServiceNow platform installation. No additional paid ServiceNow modules are required for the App's operation. 
2. ServiceNow and Open-Source Components: The ServiceNow platform incorporates various Open-Source software components. While the App may rely on these components, the Supplier does not offer warranties and explicitly disclaims any liability for damages arising from the use of the ServiceNow App, the ServiceNow Platform, or its embedded Open-Source software components. Additionally, the App may utilize embedded Open-Source features or components integrated within the ServiceNow platform. The Supplier delivers the App "as is," disclaiming any warranties and liability for damages related to the use of these Open-Source components. 
3. App's Open-Source Software Components: The App incorporates specific Open-Source software components provided by the Supplier, including GOJS, REACT, @emotion, @mui, @reduxjs, i18next, and lodash. A comprehensive list of all Open-Source software used is available upon request. 
4. Source Code Accessibility: Access to the App's source code by the Customer is strictly prohibited. Additionally, the Supplier does not permit source code escrow or any similar services involving the source code.

§9          FEES AND PAYMENT

Customers rights under Section 2 (Subscription) are conditioned upon payment by Customer of the applicable subscription fees to Supplier (either directly or through the ServiceNow Store). Subscription fees are payable annually in advance. Fees are payable within 30 days of receipt unless otherwise specified in the agreement by Customer of a valid invoice.  Such invoice may include a buyer code, if one is provided by Customer to Supplier. ALL FEES ARE NON-REFUNDABLE AND NON-CANCELABLE, except as expressly provided in this Agreement and do not include sales and use taxes, value-added taxes, goods and services taxes, excise, business, service, withholding tax, shipping, or customs duties and similar transactional taxes and fees, all of which Customer are responsible for paying above and beyond the subscription fees due to Supplier. Failure to pay fees when due may result in the withdrawal of Customers App from Customers ServiceNow instance(s). 

§10       WARRANTY, INDEMNITY AND DISCLAIMER OF WARRANTY

Supplier warrants that:  

1. the App and Supplier developed App components—excluding third-party open-source software components (see Section 8.3)—will perform in accordance with the App Documentation and the ServiceNow certification results alongside the ServiceNow Platform; 
2. the App does not contain anything or device (including any software, code, file, program, worm, Trojan horse, virus, or other similar things) which may 
3. prevent, impair or otherwise adversely affect the operation of any of Customer’s computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; or  
4. prevent, impair or otherwise adversely affect access to or the operation of any program or data (whether by re-arranging, altering or erasing the program or data in whole or in part or otherwise); 
5. use of the App by Customer in accordance with this Agreement will not adversely affect the performance of the ServiceNow Platform; and 
6. the provision and use of the App in accordance with this Agreement will not infringe or contribute to the infringement of any third-party intellectual property rights. The Supplier agrees to indemnify Customer and hold Customer and Affiliates harmless against any loss, liability, damage, cost, or expense, including reasonable legal fees, arising from any claim that the provision and use of the App in accordance with this Agreement infringes the intellectual property rights of a third party.

EXCEPT AS SET OUT ABOVE, THE APP IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. SUPPLIER EXCLUDES AND DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING (WITHOUT LIMITATION) ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NON-INFRINGEMENT, TITLE, RESULTS, EFFORTS OR QUIET ENJOYMENT. THERE IS NO WARRANTY THAT THE APP IS ERROR-FREE OR WILL FUNCTION WITHOUT INTERRUPTION. CUSTOMER ASSUMES THE ENTIRE RISK ARISING OUT OF THE PERFORMANCE OR USE OF THE APP. TO THE EXTENT THAT SUPPLIER MAY NOT DISCLAIM ANY WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW. 

§11       LIMITATION OF LIABILITY

EXCEPT TO THE EXTENT THAT DISCLAIMER OF LIABILITY IS PROHIBITED UNDER APPLICABLE LAW, IN NO EVENT WILL SUPPLIER, SERVICENOW, OR ANY OF THEIR ITS RESPECTIVE AFFILIATES, LICENSORS, SERVICE PROVIDERS, CONTRACTORS, EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS BE LIABLE TO CUSTOMER FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES ARISING FROM LOSS OF REVENUE, USE, DATA, OR PROFITS, INJURY TO REPUTATION OR GOODWILL, OR THE COST OF SUBSTITUTE GOODS OR SERVICES) WHETHER SUCH DAMAGES ARISE UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER LEGAL THEORY, AND EVEN IF SUCH DAMAGES ARE FORESEEABLE. IF, UNDER APPLICABLE LAW, LIABILITY FOR DIRECT DAMAGES CANNOT BE EXCLUDED (NOTWITHSTANDING THE FOREGOING), THEN THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY IN CONNECTION WITH THIS AGREEMENT AND THE APP, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES (IF ANY) THAT CUSTOMER PAID TO SUPPLIER IN ANY PREVIOUS 12 MONTH PERIOD. THE EXISTENCE OF MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMIT. EITHER PARTY ACKNOWLEDGES THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT NEITHER PARTY WOULD ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, SERVICENOW WILL HAVE NO LIABILITY TO CUSTOMER UNDER THIS AGREEMENT OR IN RELATION TO THE APP. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS SECTION WILL APPLY EVEN IF AN EXCLUSIVE REMEDY UNDER THIS AGREEMENT HAS FAILED OF ITS ESSENTIAL PURPOSE. 

§12       TERM AND TERMINATION

The term of this Agreement (“Term”) will commence on the start date of the subscription period as agreed in this Agreement and will remain in effect for a period of one (1) year; thereafter the Term shall automatically terminate unless actively renewed by Customer. Unless Supplier notifies Customer in writing of its intention not to renew at least 60 days prior to expiration of the then-current Term, Supplier shall, not less than 30 days before the expiration of any renewal term, provide Customer with a quotation detailing the pricing for the subsequent renewal term. The Parties shall negotiate the pricing for any renewal term in good faith. Where the Parties were not able to agree on pricing for a renewal term, the pricing during any renewal term shall be aligned with (1) the prior year’s subscription fee plus the percentage change over the prior year’s U.S. Consumer Price Index for Urban Consumers, All U.S. Cities Average, published by the Bureau of Labor Statistics of the Department of Labor, (2) Supplier’s then current published subscription fee applicable to the renewal term, but shall not increase by more than 10% above the applicable pricing in the prior term, irrespective of the length of any applicable renewal term. Customer may terminate this Agreement at any time and for any reason by giving written notice to Supplier latest (30) days before the intended date of termination; provided, however, that Customer will not be entitled to a refund of any fees paid hereunder except as set out below.  

Either Party may terminate this Agreement, effective immediately upon written notice to the other Party: 

1. For Supplier, if Customer fails to pay any portion of the subscription fees when due and fails to cure such non-payment within thirty (30) days after receipt of notice of same; or 
2. If either Party otherwise breaches any provision of this Agreement or fails to remedy such breach within 30 days after receipt of notice of the same

Upon expiration or termination of this Agreement, Customer’s License and right to use or access the App terminate, and the App must be removed from the Customer’s instance of the ServiceNow Platform.  In the event Customer terminates this Agreement for Supplier’s breach, which is not cured as set forth above. Supplier shall refund to Customer a pro-rata share of any fees which Customer paid in advance beginning from the termination date to the end of the Term. 

Sections 1, 6 - 8, 10 - 11 and 13 - 23 will survive expiration or termination of this Agreement for any reason. 

§13        Confidential Information

Supplier will not have access to Customer’s data during the term of the agreement should Customer grant Supplier access to Customer’s data, all data processed or accessed by Supplier in connection with this Agreement, shall be treated as Confidential Information. The Parties acknowledges that either Party’s Confidential Information may be disclosed to the other Party under or in connection with the Agreement are Confidential information of the other Party.  For the purposes of the Agreement, “Confidential Information" means all information, in whatever form transmitted, referring or relating to a party hereto including without limitation, technical drawings, algorithms, know-how, formulas, tools, methodologies, processes, ideas, inventions (whether patentable or not), schematics and other technical information, computer programs (including source code and object code), business, financial, customer and product development plans, quotes, forecasts, strategies and information, client lists or other information concerning either Party’s, product or service pricing, revenue, overhead, profit margins which is disclosed by such Party (in such circumstances "Disclosing Party") to the other Party hereto (in such circumstances, “Receiving Party”). Confidential Information includes but is not limited to (i) information belonging to, provided by or pertaining to Customer or any of the Customer's affiliates; (ii) information belonging to, provided by or pertaining to any Customer’s clients or any of Customer's affiliates; and (iii) personal information. Confidential Information shall not include any information that (a) is already known by the Receiving Party without an obligation of confidentiality other than under the Agreement; (b) is publicly known or becomes publicly known without any breach of obligation not to disclose that information by the Receiving Party; (c) is rightfully received by the Receiving Party from a third party having no obligation not to disclose that information; or (d) is independently developed without use of the Disclosing Party’s confidential information. 

The Receiving Party agrees that it and its Affiliates will maintain all Confidential Information received directly or indirectly from the Disclosing Party or its Affiliates in confidence and not disclose any such Confidential Information to any person or entity, except employees and advisors of the Receiving Party and its Affiliates who have a need to know, who have been informed of the confidential nature of the information, and who agree to be bound by the obligations imposed on Receiving Party and its Affiliates under the Agreement with regard to nondisclosure and use of such Confidential Information.  The Receiving Party and its Affiliates will use at least the same degree of care to avoid disclosure of such Confidential Information as they use for their own confidential information of like importance and in any event will use no less than a reasonable degree of care.  Without the prior written consent of the Disclosing Party, neither the Receiving Party nor any of its Affiliates will use any Confidential Information for any purpose whatsoever, except for the purpose of carrying out this Agreement.  Receiving Party and its Affiliates shall be strictly liable for any disclosure or use of the Confidential Information in violation of the Agreement, including any disclosure or use of the Confidential Information made by any employee or advisor of Receiving Party and its Affiliates. 

Confidential Information may be disclosed by the Receiving Party if required to be disclosed by the Receiving Party or its Affiliates pursuant to any law, rule or regulation or pursuant to a valid order of a court or other governmental body, provided that the Disclosing Party is given reasonable notice of that requirement by the Receiving Party and the Receiving Party or its Affiliates has made a reasonable effort to obtain a protective order requiring that the information disclosed be used only for the purposes for which the order of the court or other governmental body was issued. 

All Confidential Information that is disclosed by the Disclosing Party to the Receiving Party or its Affiliates under this Agreement will be and remain the property of the Disclosing Party.  Receiving Party and its Affiliates shall not reverse engineer, decompile, disassemble, or use in contravention to this Agreement any software, hardware, or tangible objects which embody the Disclosing Party’s Confidential Information. 

Upon the Disclosing Party’s written request or the termination of the Agreement for any reason, whichever occurs earlier, all Confidential Information that is in the possession or control of the Receiving Party or its Affiliates in a tangible form, including electronic, optical or magnetic form, and all copies thereof, shall be immediately returned to the Disclosing Party, or alternatively destroyed, and Receiving Party or its Affiliates shall provide written verification of such return or destruction and the date thereof. Notwithstanding the foregoing, the Receiving Party will not be obligated to return or destroy any Confidential Information to the extent of the Receiving Party’s requirement to retain e-mail on an archival system or relating to the safeguarding or backup storage of electronic data. The rights and obligations of the parties under this Agreement shall survive any such return or destruction of Confidential Information.  

§14       COMPLIANCE WITH LAWS

Customer will comply with all applicable export and import control laws and regulations in Customer’s use of the App and, Customer will not export or re-export the App without all required government licenses. Regardless of any disclosure made to Supplier of an ultimate destination of the App and accompanying technical documentation, Customer acknowledges that all such materials are being released or transferred to a Customer in the United States and may be subject to U.S. export control laws and regulations including regulations of the U.S. Bureau of Industry and Security. Customer will defend, indemnify, and hold harmless Supplier and its licensors, suppliers and resellers from and against any violation of such laws or regulations by Customer. 

§15       U.S. GOVERNMENT RIGHTS

If Customer is a branch or agency of the U.S. Government, then Customer acknowledge that the App is a "commercial item" as that term is defined at FAR 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are defined and used in FAR 2.101 and 12.212. Any technical data provided with such App is commercial technical data as that term is used in FAR 12.211 and is the same data customarily provided to the public with such App. Consistent with FAR 12.211 through 12.212 and if applicable DFARS 227.7202-1 through 227.7202-4, and DFARS 252.227-7015, all U.S. Government end users acquire the App with only those rights set forth in this Agreement. 

§16       RELATIONSHIP BETWEEN THE PARTIES

The parties are independent contractors. Neither party is the agent, partner, employee, fiduciary, or joint venturer of the other party under this Agreement. 

§17       ASSIGNMENTS

Neither Customer nor Supplier may assign or transfer, by operation of law or otherwise, any of Customer’s or Supplier’s rights under this Agreement (including Customer licenses with respect to the App) to any third-party without the other party’s prior written consent which will not be unreasonably withheld. Any attempted assignment or transfer in violation of the foregoing will be void.   

§18       LANGUAGE

This Agreement is in the English language and its English-language version will be controlling over any translation, except and to the extent when required by applicable law. 

§19       REMEDIES

Except as otherwise provided herein, the parties’ rights and remedies under this Agreement are cumulative. Customer acknowledges that the App contains valuable trade secrets and proprietary information of Supplier, that any actual or threatened breach of this Agreement by Customer will constitute immediate, irreparable harm for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.  

§20       WAIVERS

All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. 

§21       Choice of Law and SEVERABILITY

The substantive laws of the State of Florida shall govern this Agreement as though this Agreement was entered into and was to be entirely performed within the State of Florida.  The parties expressly disclaim the applicability of, and waive any rights based upon, the Uniform Computer Information Transactions Act, the United Nations Convention on the Sale of Goods, and the Convention on the Use of Electronic Communications in International Contracts. In case of disputes arising from or in connection with this Agreement or regarding its validity, the exclusive legal jurisdiction and venue shall be any court of competent jurisdiction within the State of Florida. Any legal action between Customer and the Supplier arising out of this Agreement or Customer’s use of the App must be instituted exclusively in the courts of Florida, and the Parties consent to the jurisdiction and venue in such courts. If any provision of this Agreement is held unenforceable by a court, such provision may be changed and interpreted by the court to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force, and effect. Without limiting the generality of the foregoing, Customer agrees that Sections 7 and 8 will remain in effect notwithstanding the unenforceability of any other provision of this Agreement. 

§22       ENTIRE AGREEMENT

This Agreement, and any Statements of Work issued hereunder, constitutes the final and entire agreement between the parties regarding the subject of this Agreement and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement may be amended only by a written document signed by both parties. The terms of any purchase order or similar document submitted by Customer to Supplier will be considered for negotiation purposes and will not be effective to alter the terms of this Agreement unless specifically incorporated therein.