AppViewX Software

END USER LICENSE AGREEMENT

This END USER LICENSE AGREEMENT (“Agreement” or “EULA”) is entered into between AppViewX, Inc., New York Corporation having its office at 222 Broadway, FL19, New York NY 10038 (hereinafter called “AppViewX” or “Company” including its successors and assigns) and you as the customer (hereinafter called “you” or the “Customer” including their successors and assigns) on behalf of itself and its affiliates. This Agreement governs the terms on which AppViewX licenses to Customer the Software System, whether in connection with a paid or free trial to the Software System. If you are entering into this Agreement on behalf of an entity, this Agreement shall be expressly binding on all employees, directors and officers, agents, and assigns who access or use the Software System.

By accepting this Agreement, either by executing an Order Form, accessing or using the Software or Software System, downloading the Software, installing or using the software, or authorizing or permitting any agent or representative to access or use the Software or Software System, Customer agrees to be bound by this Agreement as of (i) the date of purchase of the Software System, or (ii) the start date of trial Software, as the case may be (the “Effective Date”). If you are agreeing to this Agreement on behalf of an organization or entity, you are representing to AppViewX that you have the authority to bind such organization or entity and its affiliates to this Agreement. If you do not have such authority, or if the Customer does not agree with this Agreement, the Customer must not use or authorize any use of the Software System and contact [email protected] to request any changes.

If Customer has entered into a separate written agreement with AppViewX regarding the use of the Software or Software System, then the terms of that agreement will prevail and will govern Customer’s use of the applicable Software or Software System. If purchasing through an Authorized Reseller (as defined herein), the Authorized Reseller is responsible for the accuracy of any such order entered into between the Authorized Reseller and the Customer, and the terms in any order or agreement between the Authorized Reseller and the Customer shall not vary or modify the terms of this Agreement.

  1. DEFINITIONS: As used in this Agreement:
    1. “ADC” means application delivery controller and related network services such as ADC (Load Balancers, DDI (DNS, DHCP, IPAM), Web application Firewalls (WAF)), ITSM and DevOps tools, where the Services are measured by the number of Nodes as applicable.
    2. ‘Confidential Information’ means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of each party includes material, data, systems and other information concerning the operation, business projections, market goals, financial affairs, products, services, customers and Intellectual Property Rights of the other Party, trade secrets, ideas and concepts. Confidential Information of AppViewX shall include, but not limited to Standard Documentation and any other information which contains technical details of operation of AppViewX’s’ Software System or services offered or provided hereunder. However Confidential Information shall not include information or material that (i) is publicly available or becomes publicly available through no action or fault of the recipient party, (ii) was already in the Receiving Party’s possession or known to the Receiving Party prior to being disclosed or provided to the Receiving Party by or on behalf of Disclosing Party, provided, that, the source of such information or material was not bound by a contractual, legal or fiduciary obligation of confidentiality to the non- disclosing party or any other party with respect thereto, (iii) was or is obtained by the Receiving Party from a third party, provided, that, such third party was not bound by a contractual, legal or fiduciary obligation of confidentiality to the non-disclosing party or any other party with respect to such information or material, or (iv) is independently developed by the Receiving Party without reference to the Confidential Information.
    3. “Device Certificates” means all certificates not falling under server certificate category (e.g. device, user, code signing, OT/IoT certs) fall under this category. These certificates may be deployed on laptops or any other mobile devices, IoT/OT Devices.
    4. “IoT Devices” means devices at a Customer-owned location or a Customer premises, but excludes any of Customer’s consumer locations or other end customer locations to which Customer may resell goods or services.
    5. ‘License Fee’ means the applicable fee paid or required to be paid by the Customer to AppViewX for the right to use the Software System under this Agreement. In the case of trial Software, the License Fee is free of charge during the trial period.
    6. “Managed Certificates” means Certificates in the inventory with ‘managed’ flag and are eligible for at least one lifecycle action (enroll, renew, revoke, install, push, bind) in addition to monitoring and analytics. Managed Certificates may be of the type Server Certificates or Device Certificates.
    7. “Monitored Certificates” means Certificates in the inventory with ‘monitored’ flag are eligible for lifecycle monitoring and analytics. Typical action for these certificates is to get alerted for certificate expiry. Monitored certificates may be of type Server Certificates or Device Certificates.
    8. Non-Production Location’ means the premises where the Customer’s management operations are conducted and where the Software System shall be installed for test support and advisory purposes.
    9. “Nodes” means the connected network devices such as Application Delivery Controllers (ADC), Web App Firewalls (WAF), Network Firewalls, DDI, routers, servers, proxy, switches, or DevOps tools that can receive and send data from one endpoint to the other. A Node can also be a unique web application that is addressable via URI or URL such as - Service Now, JIRA, BMC Remedy, Source Control Management (GITLab, GitHub, BitBucket). Example of Nodes - ADC Devices/Controllers/Service Engines/Virtual Instances (VE’s) , DDI, ITSM tool
    10. ‘Order Form’ means the order form agreed to between AppViewX and the Customer or between AppViewX and AppViewX authorized reseller (“Authorized Reseller) in case the order is placed through Authorized Reseller, with details of the Software System being licensed, along with the License Fee, the Production Location and Non- Production Location, and other commercial terms for access and use of the Software System.
    11. ‘Production Location’ means those premises at the site of activity of the Customer. Each Production Location will include a backup site associated with production, which will enable/permit the Customer to continue their operations if the relevant Production Location is rendered not operational. ‘Non-Production Location’ and ‘Production Location’ shall collectively hereinafter be referred to as ‘Location’, unless otherwise specified.
    12. “Server Certificates” means Certificates having ‘serverauth’ as one of the key usage (KU) or extended key usage (EKU) configured are counted in this category. These Certificates are typically deployed on application delivery infrastructure like web server, app server, load balancer, and firewall.
    13. ‘Software’ means the computer programs as described in the applicable Order Form and licensed by AppViewX to Customer through electronic transfer downloading that are the subject matter of this Agreement.
    14. ‘Software System’ means the AppViewX computer programs in object code and procedure statements in machine executable form for the Software together with Company’s Standard Documentation including user manuals for use therewith. Other aspects may also include, but are not limited to Software updates and any upgrades that the AppViewX may supply or make available to the Customer for the computer programs.
    15. ‘Solution’ means the specific features (that solves a specific business problem natively and/or in a customized approach by leveraging the platform's automation capabilities) of the Software purchased on the applicable Order Form, e.g. CERT, PKI, SSH, ADC, Automation(DDI), Automation(Firewall).
    16. ‘Standard Documentation’ means operation manual, user guide and other reference documentation that related to the Software System made available to the Customer electronically by AppViewX
    17. ‘Use’ means the license to copy any portion of the Software System into the Customer’s equipment, the processing by the equipment of the machine instructions and procedure statements provided in the Software System, or the utilization of the instructional materials supplied with the Software System for the Customer’s own business purposes.
  2. LICENSE:
    1. Subject to the terms and conditions of this Agreement and payment of the applicable License Fee, AppViewX grants to the Customer a non-exclusive, non-transferable user license (without the right to sublicense) to (a) install, run and use the licensed Software and Software System for the processing of its data for its own business purposes, and in accordance with the terms and conditions of this Agreement, the Documentation and any scope of use restrictions designated in the applicable Order Form (including any limits on number of Certificates, availability of a particular Solution, or for ADC any limits on the number or capacity of Nodes, as applicable), at the Production and Non-Production locations during the term of this Agreement; and (b) reproduce or make copies of the Software System solely for back up, testing, disaster recovery or archival purposes. Customer shall reproduce on such copies all copyright, trademark or other proprietary markings of AppViewX.
    2. In the event that the Customer receives a free trial of the Software System, Customer is granted a limited, revocable license to use the Software System solely for testing and evaluation purposes only and not for commercial use solely for a thirty (30) day license term or such longer term as approved by AppViewX. AppViewX provides the evaluation Software System “as-is” without warranties or indemnities of any kind and AppViewX disclaims liability for the Customer’s use of the evaluation Software System. Any feedback on the Software System received by AppViewX from the Customer during the evaluation shall constitute Confidential Information and trade secrets of AppViewX.
  3. TERM
    1. Subject to payment of applicable License Fee and except for the trial Software, this Agreement shall be valid for a period of 12 months from Effective Date and shall continue for further period on payment of applicable License Fee for renewal for such extended period unless either party gives the other party minimum 30 days’ notice in writing for non-renewal of the Agreement/license.
  4. DELIVERY
    1. AppViewX makes available for download the Software System for the Production Location of the Customer. Such access shall be done remotely and Customer shall have exclusive access to the Software.
  5. PAYMENT

    The following provisions shall apply where the Customer purchases from AppViewX directly. When purchasing the Software from an Authorized Reseller, the payment terms and conditions negotiated independently between the Customer and the Authorized Reseller shall control.

    1. For direct orders, AppViewX shall send Customer via electronic mail the invoice(s) for the license fee and other applicable fees at the email address provided by Customer in the Order Form, and the invoice shall be payable within thirty (30) days from the date of the invoice(s). Unless otherwise agreed to in writing by and between AppViewX and Customer, payment of the License Fee and applicable fees shall be made in U.S. dollars and paid to AppViewX by automated clearing house (ACH) or wire transfer to AppViewX’s account number listed on the invoice(s). Late payments are subject to interest of one (1%) per month or the highest rate permitted by law, whichever is lower. If Customer considers any amount or charge within an invoice to be incorrect, Customer must contact AppViewX in writing within ten (10) days of the date of the invoice. During the renewal period, the price will be increased by 8% per annum over previous year’s price.
    2. In addition to the Fee described above, the Customer shall pay all taxes, including value added tax, withholding tax, and duties (present and future) whatsoever nature with respect to this transaction, howsoever levied.
  6. WARRANTIES
    1. During the term of this Agreement, AppViewX warrants that the Software System when used in accordance with the Standard Documentation and as permitted under this Agreement will operate in substantial conformance with the functions specified in Standard Documentation and AppViewX will provide replacements or corrections, to any part of the Software System which does not so perform in accordance with this limited warranty conditioned upon AppViewX’s continued renewal of the license and payment of the License Fee and other applicable fees required under this Agreement. The forgoing warranties do not apply and are excluded if the Software System has not been used in a manner other than as set forth herein.
    2. EXCEPT AS EXPRESSLY PROVIDED HEREIN, APPVIEWX MAKES NO WARRANTIES OF ANY KIND, WHETHER ORAL, WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND APPVIEWX SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
    3. Customer and AppViewX each represent and warrant to each other that: (a) its performance under this Agreement will not violate any applicable law; (b) it is duly formed, validly existing and in good standing under the laws of the jurisdiction of its formation; (c) it has the full right, power and authority to enter into this Agreement and to perform its obligations hereunder; and (d) this Agreement has been duly executed by its authorized representative and is legally binding upon it and enforceable in accordance with the terms.
  7. MAINTENANCE SUPPORT:
    1. During the term of this Agreement, AppViewX shall provide standard maintenance support as set forth at Software Support, so long as the License Fee is fully paid and not in arrears. Support and access to upgrades for the Software and Software System are included within the license provided to Customer under this Agreement. AppViewX may provide updates, upgrades, bug fixes and modifications to the Software and Software System from time to time at its discretion. The AppViewX reserves the right to make necessary changes, updates or enhancements to the Software at any time. AppViewX shall not be responsible for any acts or omissions of Customer or from any resulting operational or impairment issues arising from or related to the Customer’s use the Software or Software System with other software or applications. AppViewX does not and shall not have access to, charge of or control over the use, management, or supervision of Customer’s computer hardware, software, systems, or databases.
  8. INFRINGEMENTS CLAIMS BY THIRD PARTIES AND INDEMNIFICATION:
    1. AppViewX shall indemnify, defend, and hold harmless Customer and Customer’s officers, directors, employees, agents, permitted successors and permitted assigns (each, a "Customer Indemnitee") from and against any and all losses incurred by Customer resulting from any claim by a third party that the Software or Software System, or any use of the Software or Software System in accordance with this Agreement, infringes or misappropriates such third party's patent, trademark, copyright, or trade secret rights (“Intellectual Property Claim”). This Section 8.1 does not apply to the extent that the alleged Intellectual Property Claim arises from: (a) combination, operation, or use of the Software or Software System in or with, any technology (including any software, hardware, firmware, system, or network) or service not provided by AppViewX or specified for use in the Standard Documentation; (b) modification of the Software or Software System other than: (i) by AppViewX in connection with this Agreement; or (ii) with AppViewX’s express written authorization and in strict accordance with AppViewX’s written directions and specifications; (c) use of any version of the Software or Software System other than the most current version or failure to timely implement any modification, update, or replacement of the Software or Software System made available to Customer by AppViewX; (d) use of the Software or Software System after AppViewX’s notice to Customer of such activity's alleged or actual infringement, misappropriation, or other violation of a third party's rights;(e) negligence, abuse, misapplication, or misuse of the Software or Software System or Standard Documentation by or on behalf of Customer or a third party; (f) use of the Software, Software System or Standard Documentation by or on behalf of Customer that is outside the purpose, scope, or manner of use authorized by this Agreement; (g) events or circumstances outside of AppViewX’s commercially reasonable control (including any third-party hardware, software, or system bugs, defects, or malfunctions); or (h) claims or losses based on Customer’s gross negligence or willful misconduct.
    2. In the event of an Intellectual Property Claim, AppViewX may, at its option and cost: (a) obtain the right for Customer to continue to use the Software System as contemplated by this Agreement; (b) modify or replace the Software System, in whole or in part, to seek to make the Software System non-infringing, while providing equivalent features and functionality; or (c) terminate this Agreement, in its entirety or with respect to the affected part or feature of the Software System, effective immediately on written notice to Customer, in which event: (i) Customer shall cease all use of the Software System immediately on receipt of notice; and (ii) provided that Customer fully complies with its post-termination obligations set, Customer shall be entitled for prorated refund of prepaid License fee for the affected Software System for the remaining term of the license period after termination.
    3. Customer (“Indemnitee”) shall promptly notify AppViewX (“Indemnitor”) in writing of any claim for which Customer believes it is entitled to be indemnified pursuant to this Section 8. Indemnitee shall cooperate with Indemnitor at the Indemnitor's sole cost and expense. The Indemnitor shall promptly assume control of the defense and investigation of such claim and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any claim on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee's prior written consent, which shall not be unreasonably withheld or delayed. The Indemnitee's failure to perform any obligations under this Section 8 will not relieve the Indemnitor of its obligations under this Section 8, except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure.
  9. LIMITATION OF LIABILITY:
    1. In no event shall either Party be liable for special, exemplary, incidental, consequential, punitive or tort damages resulting from loss of use, data, profits or business arising out of or in connection with this Agreement, including without limitation any such damages arising out of or in connection with this Agreement, whether or not a Party has been advised of the possibility of such damages.
    2. EXCEPT FOR INTELLECTUAL PROPERTY INDEMNIFICATION CLAIMS, DEATH, PERSONAL INJURY, OR CLAIMS WHICH CANNOT BE LIMITED BY LAW, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNT PAID TO APPVIEWX UNDER THE APPLICABLE PURCHASE ORDER OR ORDER FORM IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
  10. TITLE AND INTELLECTUAL PROPERTY RIGHTS:
    1. Nothing herein shall convey title or any proprietary rights in or over the Software or Software System to the Customer and the Customer’s sole right in relation to the Software or Software System are set forth in Section 2.1 to this Agreement. The Software is protected by copyright laws as well as other relevant intellectual property treatises.
    2. The Customer shall not remove, obscure or alter any copyright notices of AppViewX or of its affiliated companies appearing in or imbedded in the Software System, modified version of Software System or related or accompanying Standard Documentation.
    3. “AppViewX” and the AppViewX logo are trademarks of AppViewX, in the United States and other countries. All other trademarks, product names, and company and other organization names and logos appearing in the Software are the property of their respective owners.
    4. The Software, including object code, source code, Software System, Standard Documentation, any artwork, deliverables, drawings, manuals, reports, specifications, schematics, designs, prototypes, products, software code, algorithms, formulae, processes, concepts, methods, files, tapes, disks, related Standard Documentation, memoranda, studies, plans, exhibits, or any other data, information or materials prepared and/or developed by AppViewX (the “AppViewX Intellectual Property”), shall be exclusive property of AppViewX and AppViewX shall exclusively own all right, title and interest to such items, including but not limited to copyrights, trade secrets, business methods and patents.
    5. This Agreement is not an Agreement of sale, and does not transfer any title, intellectual property rights or ownership rights to the any of the AppViewX Intellectual Property to Customer. Customer acknowledges and agrees that AppViewX Intellectual Property all future updates and upgrades, if any, and all other improvements, revisions, corrections, bug-fixes, hot-fixes, patches, modifications, enhancements, releases, DATs, signature sets, and policy and database updates or to the AppViewX Intellectual Property, as applicable, all derivative works based on any of the foregoing, and all copies of the foregoing are trade secrets and proprietary property of AppViewX, having great commercial value to AppViewX.
  11. CONFIDENTIALITY AND NON-DISCLOSURE:
    1. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its employees and legal counsel who are required to know, without the other party’s prior written consent, provided that a party that makes any such disclosure to its employees or, legal counsel will remain responsible for their compliance with this confidentiality provision. The provisions of this paragraph shall survive termination of this Agreement. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the legally compelled disclosure and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
    2. The Software and Software System, each independently and collectively, remain a confidential trade secret of AppViewX. The Software System is protected by copyright and other intellectual property laws of the United States and international treaties. The Customer acknowledges that, in the course of using the Software System, Customer may obtain or learn information relating to the Software System, know-how, techniques, processes, ideas, methods, algorithms and Software design and architecture (“AppViewX Intellectual Property Rights”). Such AppViewX Intellectual Property Rights belong solely to AppViewX. During and after the term of this Agreement, Customer shall hold in confidence and protect, and shall not use (except as expressly authorized by this Agreement) or disclose the AppViewX Intellectual Property Rights to any third party.
    3. The Customer covenants that it will ensure and instruct its employees and contractors not to and will not allow or cause to allow any third party to copy, reverse engineer or otherwise exploit any component of the Software System other than as herein provided, nor make any disclosures with reference thereto to any third party.
    4. AppViewX shall obtain consent of the Customer to include Customer’s name and logo in AppViewX’s general list of customers, website or in any other publicly disclosed documentation, which consent shall not be unreasonably withheld.
    5. AppViewX may compile statistical information related to the performance of the Services for purposes of improving the Software or Software System offered by AppViewX, provided that such information does not identify Customer’s data or include Customer’s name.
    6. If, in the course of its use of the Software or Software System, Customer transfers, sends or otherwise discloses files or other information containing Personal Data to AppViewX in connection with a support request or submission of threats, the parties agree that Customer is the Controller of the Personal Data and AppViewX shall process the Personal Data as a Processor on Customer’s behalf. Customer shall be responsible for compliance with all worldwide data protection and privacy laws applicable to the Personal Data in question, including all applicable US federal and state laws and, in respect of Personal Data originating from the European Economic Area, EU Directive 95/46/EC (as superseded, amended or replaced) (“Applicable Privacy Law(s)”) and ensuring Customer has the right to transfer, or provide access, to AppViewX for these purposes. As used herein, “Personal Data", "processing", "Controller" and "Processor" shall have the meanings given to them in Applicable Privacy Law(s). If and to the extent that Applicable Privacy Law(s) do not define such terms, then the definitions given in EU Directive 95/46/EC (as amended, superseded or replaced) will apply.
  12. TERMINATION:
    1. Either Party may terminate this Agreement, if the other party materially breaches any provision of this Agreement and does not cure such breach within thirty days after receiving written notice thereof from the other party On the expiration or termination of this Agreement, AppViewX shall be entitled to recover possession from the Customer of all copies of the Software System (however amended) supplied to the Customer and/or in existence at the time of expiration or termination or require the Customer to destroy the same and certify that it has done so. If Customer terminates an Order Form or this Agreement for AppViewX’s material breach, Customer will be entitled for refund of prorated portion of the prepaid License Fee for the remaining period of the license term related to the terminated Order Form.
    2. AppViewX shall have right to terminate this Agreement and withdraw license if applicable License Fee is not paid as per the terms of this Agreement. The Customer may terminate this Agreement after full payment of the applicable License Fee with 30 days prior written notice to AppViewX. However such termination shall not entitle the Customer to a refund of any part of the License Fee paid nor shall such termination prevent AppViewX from recovering any balance outstanding.
    3. Exercise of the right of termination afforded to either party shall not prejudice legal rights or remedies either party may have against the other with respect to any breach of the terms of this Agreement.
    4. Upon termination of this Agreement, Customer shall immediately cease using the Software System and shall return to AppViewX or destroy any Confidential Information of AppViewX. Customer shall be responsible for all payments owed under the applicable Order Form notwithstanding any such termination.
  13. FORCE MAJEURE:
    1. If the whole or any part of the performance by either party of their respective obligations hereunder is prevented or delayed by causes, circumstances or events beyond the control of such party, including delays of third parties in transportation, strikes, labor troubles, electrical failures, floods, fires, accidents, earthquakes, riots, explosions, wars, hostilities, acts of government, custom barriers, or other causes of like character beyond the control of such party, then to the extent such party shall be prevented or delayed from performing all or any part of its obligations hereunder by reason thereof despite due diligence and reasonable efforts to do so notwithstanding such causes, circumstances or events, then such party shall be excused from performance hereunder for so long as such causes, circumstances or events shall continue to prevent or delay such performance. Payment for the License Fee or other fees due and owing to AppViewX cannot and shall not be delayed or suspended for any such force majeure event.
  14. NON-ASSIGNMENT:
    1. Neither party shall assign or transfer this Agreement nor any right or obligation hereunder without the prior written consent of the other party (which shall not be unreasonably withheld), except in the event of a merger, acquisition or sale of substantially all of the assets of such party. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
  15. OTHER PROVISIONS:
    1. Each party shall comply with all applicable laws, including but not limited to the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Software. Without limiting the foregoing, (i) each party represents that it is not named on any U. S. government list of persons or entities prohibited from receiving exports, and (ii) Customer shall not permit users to access or use Software System in violation of any U. S. export embargo, prohibition or restriction.
    2. The Customer shall ensure that usage of the Software System complies with the authorized quantity of licenses procured under this Agreement. In the event Customer desires to purchase extra licenses Customer shall procure additional licenses under a separate Order Form, which shall be subject to the terms and conditions of this Agreement. Upon providing Customer with notice of the scope and information to be collected and reviewed, AppViewX shall have the right to audit the number of licenses used by the Customer. If the usage is found to be in excess of licensed quantity, AppViewX shall present an invoice to Customer for any overage, payable as per Section 5 of this Agreement, and the Customer shall be required to pay the overage or reduce the number of licenses accordingly.
    3. Customer understands and agrees and consents to AppViewX’s collection and use of the Customer’s information as set forth in this Agreement, and this Agreement incorporates by reference AppViewX’s Privacy Policy.
    4. This Agreement may be updated from time to time and posted on the Company’s website. Customer’s use of the Software System after such revision has been posted is acceptance of its terms. Except as updated by AppViewX on the Company website, no modification, amendment, or waiver shall be effective unless in writing and signed by authorized representatives of both parties. No indulgence or forbearance by either party under this Agreement shall be deemed to constitute a waiver of its rights to insist on performance in full and in a timely manner of all covenants under the Agreement and any such waiver in order to be binding upon a party must be expressed in writing and signed by such party and then such waiver shall be effective only in the specific instance and for the purpose for which it is given.
    5. This Agreement, including any Order Form, constitutes the entire agreement between the parties as to the subject matter hereof and supersedes all previous and contemporaneous agreements, whether written or oral, with respect thereto. No terms or conditions set forth on any purchase order, preprinted Customer order form, or other document from the Customer shall add to or vary the terms and conditions of this Agreement and such terms are of no force or effect on AppViewX. In the event of any inconsistency or conflict between the terms of the Agreement and the terms of any Statement of Work or Order Form entered into between AppViewX and the Customer, the terms of the Order Form or Statement of Work shall control. This Agreement applies to purchases made through an Authorized Reseller and this Agreement shall control in the event of any inconsistency with the Customer’s agreement with the Authorized Reseller.
    6. Neither the U.N. Convention on Contracts for the International Sale of Goods nor the Uniform Computer Information Transaction Act shall apply this Agreement or any dispute or claim arising from it.
  16. GOVERNING LAW:
    1. This Agreement, and any dispute relating to or arising out of this Agreement, will be governed by and in accordance with the laws of State of New York, without giving effect to the conflict of law’s provisions. For all disputes arising out of this Agreement, the parties consent to the exclusive jurisdiction of the federal and state courts located in New York. Parties consent to the exclusive jurisdiction of the federal and state courts located in New York. The parties irrevocably waive any objection, which any of them may now or hereafter have to the bringing of any such action or proceeding in such respective jurisdiction, including any objection to the laying of venue based on the grounds of forum non conveniens and any objection based on the grounds of lack of personal jurisdiction.
  17. NOTICES:
    1. Any notice required to be given hereunder shall be given in writing, either by overnight courier or by registered mail with postage prepaid, return receipt requested, in each case addressed (a) to AppViewX, by sending to the addresses as first set out above to the attention of the Legal Department, or (b) to Customer at the address as listed in the Order Form or as provided upon registration of the Software. Either party may designate a subsequent address for the purpose of receiving notices pursuant to this Agreement. Any notice so sent shall be deemed to have been given ten (10) business days after the same was mailed if sent by registered mail and five (5) business days if sent by overnight courier.
  18. CONSTRUCTION:
    1. 18.1 This Agreement does not limit or restrain the right of AppViewX to execute agreements for the licensing of the Software System or any components thereof with other Customers/end-users.