Software License and Subscription Agreement – Hexnode XDR

This Software License and Subscription Agreement (“Agreement”) sets forth the terms and conditions under which the applicable Mitsogo Contracting Entity (“Licensor”), as determined in accordance with Section 13, provides you (“Licensee”) a licence to use the Software and Services described under this Agreement. The Licensee will submit an Order Form for the purchase of the Software either directly to the Licensor or through the Licensor’s authorized reseller. The Licensor and the Licensee shall be referred to individually as a “Party” and collectively as the “Parties”.

THIS IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND THE LICENSOR WHICH GOVERNS THE USE OF THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, ALL THE ASSOCIATED DOCUMENTATION. LICENSOR PROVIDES THIS SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. BY EXECUTING AN ORDER FORM OR BY CLICKING A BOX INDICATING ACCEPTANCE OR BY USING THE SERVICES, THE LICENSEE ACCEPTS THIS AGREEMENT AND AGREES THAT THE LICENSEE IS LEGALLY BOUND BY ITS TERMS. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT IN RESPECT OF ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR’S SOFTWARE, AND THIS AGREEMENT EXPRESSLY EXCLUDES ALL RIGHTS CONCERNING SUCH SOFTWARE.

Capitalized terms shall have the meanings set forth in this Clause 1 of this Agreement, or in the clause where first used in this Agreement, the Order Form, or an Amendment Order Form (if applicable).

1.1. “Affiliate” means any person, corporation, or other entity which controls, is controlled by, or is under common control with a Party to the Agreement, whether as of the Effective Date or in the future. A corporation or other entity will be regarded as in “control” of another corporation or entity if it owns or directly or indirectly controls more than fifty percent (50%) of the voting stock or other ownership interest of the other corporation or entity, or if it possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the corporation or other entity. With respect to the Licensee, “Affiliate” refers only to those Affiliates listed in the Order Form or Amendment Order Form;

1.2. “Amendment Order Form”  means any written Order Form, addendum, or similar document executed by both Parties that references this Agreement and sets out modifications to an existing Order Form, including changes to the scope of access, Software modules, Subscription Term, Fees, user quantities, or other commercial terms;

1.3. “Applicable Laws”  means all applicable laws, by-laws, statutes, rules, regulations, codes, permits, licenses, approvals, consents, authorizations, government approvals, judgments, orders, or notifications, in effect and governing the subject matter of this Agreement;

1.4. “Authorized Users”  means the Licensee’s employees, agents, or subcontractors, or other entities, who are authorized to administer or otherwise access and use the Software or Services as specified in the Order Form;

1.5. “Confidential Information”  shall mean all information that is designated as confidential or that should be reasonably considered as confidential, given the nature of the information and the circumstances surrounding its disclosure. Confidential Information, includes any information disclosed (whether in oral, written or other tangible or intangible form) by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) concerning its or its Affiliates’ technology, licenses, business plans, promotional and marketing activities, information relating to finances and other business affairs, including that which relates to plans, the Software, and any intellectual property analyzes, projects, processes, systems, software, Source Codes, object codes, services, inventions, specifications, designs, concepts, business policies or practices, financial statements, marketing, research or development activities, and all technical or scientific information or know-how of the Disclosing Party or of any other person or entity as to which the Disclosing Party is obligated to maintain in confidence, which is disclosed to the other Disclosing Party in diagram, written, oral or other recorded form. Confidential Information shall also include the existence and terms of this Agreement and all invoices (including all non-public pricing information). Information that is delivered orally will be identified as confidential at the time of disclosure or promptly thereafter. Notwithstanding the provisions of this Agreement, “Confidential Information” shall exclude any information that:

1. at the time of disclosure, was already known to the Receiving Party prior to the date of this Agreement and free of restrictions or other confidentiality obligations, as evidenced by documentation in the Receiving Party’s possession or independently developed by the Receiving Party without use or reference to the Disclosing Party’s Confidential Information;
2. is already publicly available at the time of disclosure or that becomes publicly available other than through a breach of this Agreement by the Receiving Party;
3. was rightfully received by the Receiving Party from a third party without similar confidentiality restriction from such party, and the disclosure of which by such third party does not constitute a violation of an obligation by such third party to the Disclosing Party; and
4. the Disclosing Party confirms in writing is free of such restrictions;

1.6. “Data Protection Addendum” means the data processing addendum available at https://www.hexnode.com/legal/dpa/;

1.7. “Documentation” means all user manuals, documentation(s) and other technical materials relating to the Software or the Services, whether in written or electronic form, provided by the Licensor to the Licensee from time to time detailing the features, functionalities, and operation of the Software;

1.8. “Effective Date” shall mean the date of execution of the Order Form;

1.9. “Endpoint” means any physical or virtual device, such as a computer, server, laptop, desktop computer, mobile, cellular, container, or virtual machine image;

1.10. “Force Majeure Event” means any circumstance or event beyond the reasonable control of a Party which prevents or materially delays that Party’s performance of its obligations under this Agreement, including but not limited to acts of God, natural disasters, epidemics, pandemics, war, acts of terrorism, civil unrest, strikes, labour disputes (excluding those involving the affected Party’s own personnel), utility failures, cyberattacks, denial-of-service attacks, interruption or failure of telecommunications networks or internet service providers, and actions or restrictions imposed by governmental or regulatory authorities;

1.11. “Intellectual Property Rights” means any and all now known or hereafter existing worldwide rights including (a) rights associated with the Software, Source Codes, object codes, and Services, including copyrights, moral rights, and other applicable rights; (b) trademark or service mark rights, business names, trade names, passing off rights; (c) trade secret rights, unfair competition rights and know-how; (d) patents, patent rights, utility models, semi-conductor topography rights and industrial property rights; (e) database rights, rights to protect the confidentiality of Confidential Information; (f) layout design rights, design rights and other proprietary rights of every kind and nature other than trade dress, and similar rights; and (g) all registrations, applications, renewals, extensions, or reissues of the foregoing;

1.12. “Licensee Data” means all electronic data and information submitted to, stored within or transmitted via the Software by the Licensee or an Authorized User as a result of the Licensee’s or Authorized User’s use of the Software;

1.13. “Malicious Code” means viruses, worms, time bombs, Trojan horses, logic bombs, trap doors, cancelbots or any other malicious code, files, scripts, software agents or programmes designed to disrupt, interrupt, disable, damage, destroy, or limit the functionality of any equipment or any device, software, system, or telecommunication equipment;

1.14. “Order Form” means a written order signed by the Parties and governed by and entered into pursuant to this Agreement that specifies: (a) the detailed scope of the specific Services and License to be provided to the Licensee; (b) payment and billing terms; (c) Authorized Users; and (d) any other terms mutually agreed between the Parties;

1.15. “Prerequisite Software” means third-party software that is required to enable the Software to function;

1.16. “Renewal Term” means each recurring twelve (12) month period following the expiry of the Subscription Term, or such other time period as mentioned in the Order Form;

1.17. “Reseller” means a Hexnode authorized reseller, distributor, or other independent third party from which the Licensee purchases a subscription to the Software;

1.18. “Services” means any services that the Licensor provides to the Licensee, including any Support Services specified under the Order Form;

1.19. “Software” means computer programs provided under license to the Licensee, including Software Updates, upgrades, firmware, and applicable Documentation;

1.20. “Software Updates” means any patches, modifications, enhancements, improvements, or revisions to the Software, including new versions or releases, provided by the Licensor at its sole discretion to the Licensee from time to time. This excludes updates, upgrades, modifications to Third-Party Software or dependencies integrated with or used alongside the Software unless explicitly agreed upon by the Licensor;

1.21. “Source Code” means the Software code in human-readable form or any of the Software code in human-readable form, including code compiled to create the Software or decompiled from the Software, but excluding interpreted code comprised in the Software;

1.22. “Start Date” means the start date mentioned in the Order Form or Amendment Order Form, as applicable, on which the Licensor makes the Software and Services available to the Licensee;

1.23. “Subscription Term” means the initial term for the Licensee and the Licensee’s Authorized Users’ use of the Services and Software as specified in the Order Form, beginning on the Start Date;

1.24. “Support Services” means the technical support and maintenance services offered by the Licensor, on an annual basis, which include relevant Software Updates provided to the Licensee at the Licensor’s sole discretion;

1.25. “Third-Party Patch Materials” means any patches and related information about patches that are provided and maintained by Third-Party Service Providers. Licensor does not control the provision of Third-Party Patch Materials;

1.26. “Third-Party Service Providers” means any third-party who provides services in addition to the Services under this Agreement;

1.27. “Third-Party Software” means any third-party software deployed in connection with the Licensee’s usage of the Software and includes Third-Party Patch Materials. Licensor shall not be responsible for any Third-Party Software. Licensee’s use of any Third-party Software shall be governed by the terms of use of such Third-party Software;

1.28. “Threat Data” means any information about malware, threats, actual or attempted security events, including but not limited to their frequency, source, associated code or metadata, general identifiers, attacked sectors and geographies that: (a) Licensee provides to Licensor in connection with this Agreement; or (b) is collected or discovered by Licensor in connection with Licensee’s access and use of the Software, excluding any information or data that identifies Licensee or its Authorized Users or to the extent that it includes personal data. For the sake of clarity, it is clarified that Threat Data does not include Confidential Information of the Licensee; and

1.29. “Usage Data” means any diagnostic and usage-related information from the use, performance and operation of the Software, including, but not limited to, type of browser, Software features, and systems.

§ 2. RESTRICTIONS AND RESPONSIBILITIES

2.1. License Grant: Subject to the Licensee’s payment of the Fees and the Licensee’s compliance with all the terms and conditions set forth in this Agreement, the Licensor grants the Licensee on and from the Effective Date, a limited, worldwide, non-exclusive, revocable, non-transferable, non-sublicensable license (“License”) to access and use the Software in accordance with the terms of this Agreement and applicable Documentation solely for Licensee’s internal use during the applicable Subscription Term. Licensor’s grant of License shall include the license to the Documentation, Software Updates, and plug-ins provided to the Licensee. Licensee’s access and use of the Software is limited to the rights granted (i.e. applicable quantity) in the Order Form. Licensee shall forfeit the right to use the Software at the end of the Subscription Term unless the License is duly renewed for a Renewal Term by paying the applicable Fees. Additional terms and conditions shall apply to the License depending on specific Software and Services.

2.2. Use by Affiliates, Authorized User and Security of Credentials: Licensor may permit Licensee’s Affiliates to use or access the Software by executing a separate Order Form, in which case the Affiliate will be treated as the “Licensee” for the purposes of this Agreement. In the Licensor’s sole discretion, the Licensor may, in writing, consent to the inclusion of the Licensee’s Affiliates as an Authorized User, in accordance with the terms specified in an Order Form, and subject to a change in Fees, as agreed between the Parties in writing. Each Affiliate that uses the Software shall be deemed a party to this Agreement and shall be jointly and severally liable with the Licensee. Licensee shall be responsible and liable for all acts or omissions arising out of its Authorized Users’ use of the Software. Licensee shall be responsible for securely maintaining the credentials of all Authorized Users.

2.3. Trial License and Beta License: If the Licensor, at its sole discretion, permits the Licensee to use and access the Software for a limited period for evaluation of the Software (“Trial Period”), the Licensor shall be deemed to have granted the Licensee a limited, revocable, non-exclusive, non-transferable, and non-sublicensable license within the jurisdiction in which the Licensee is legally established or registered to conduct business (“Trial License”), to access and use the Software for the Trial Period. All terms governing the general License under this Agreement shall also be applicable to the Trial License, except as expressly modified by this Clause 2.3. The Trial License excludes access to any versions of the Software that the Licensor has not released for public access, including beta, preview, or release versions of the Software. TO THE EXTENT ALLOWED BY APPLICABLE LAWS, THE LICENSEE SHALL NOT BE ENTITLED TO RECOVER FROM THE LICENSOR ANY DAMAGES THAT MAY ARISE FROM OR ARE RELATED DIRECTLY OR INDIRECTLY TO THE USE OF THE SOFTWARE DURING THE TRIAL PERIOD. Each Party may terminate the Trial License at any time upon providing written notice to the other Party. Any beta, trial, or pre-release features are provided “AS IS”, without warranties or support. Licensor may modify or discontinue beta features at any time. Beta features are excluded from all service level commitments.

2.4. Licensee’s Representations and Warranties: Except as expressly provided for in this Agreement, the Licensee represents and warrants that it shall not, directly or indirectly, and shall not permit any third party to:

1. license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, or reproduce any portion or make the Software, its features or functionalities available to any third party;
2. translate, modify, copy, alter, adapt, or combine the Software with other software, or create derivative works based in whole or in part on the Software or the associated Documentation;
3. reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying structure or algorithms of the Software or non-public APIs;
4. remove, alter, or obscure any proprietary notices from the Software or Documentation;
5. use the Software or any of the public APIs for purposes other than solely for the Licensee’s internal business purposes;
6. attempt to disrupt, degrade, impair, or violate the integrity, security, or performance of the Software;
7. use the Software to store, transmit, or propagate any viruses, software routines, or other Malicious Code designed to permit unauthorized access, to disable, erase, or otherwise harm the Software, or to perform any other harmful actions;
8. upload any content to the Software that is unlawful, pornographic, obscene, indecent, harassing, racially or ethnically offensive, harmful, threatening, discriminatory, defamatory, or facilitates or promotes illegal activities;
9. interfere with or create an undue burden on the operation of the Software or the Licensor’s infrastructure, as determined by the Licensor in its sole discretion;
10. attempt to disable, circumvent or bypass the controls, monitoring, billing, or security measures of the Software and/or any components thereof;
11. access or use the Software in a manner that violates Applicable Laws or regulations, infringes third-party rights, or violates the terms and conditions of this Agreement.
12. Disclose, publish, or otherwise make publicly available any benchmark, performance, or comparison tests that the Licensee (or its Affiliates or Authorized Users) runs on the Software, in whole or in part;
13. Employ or authorize a competitor of the Licensor to use or view the Software or Documentation, or to provide management, hosting or support for the Software;
14. Use the Software that is licensed for a specific kind of device, whether physical or virtual, on another device, unless expressly authorized by the Licensor in writing;
15. use the Software or any output generated by it to train machine learning or artificial intelligence models, or for the purpose of creating competing software products or models, whether manually or through automated means;
16. use any automated tools, bots, or scripts to access or interact with the Software except as expressly permitted in writing by the Licensor;
17. access or use the Software in any country or territory subject to comprehensive trade sanctions, or in violation of applicable export control laws;
18. interfere with or attempt to disable any usage tracking, telemetry, or analytics tools embedded in the Software that are used for performance, security, or compliance monitoring purposes;
19. allow access to or use of the Software by any person other than the Licensee’s Authorized Users, as defined in this Agreement;
20. modify, tamper with, or otherwise interfere with the technical environment, configuration, or installation parameters of the Software without prior written approval from the Licensor; and
21. restrict or deny the Licensor access to the deployed Software or related logs for purposes of technical support, maintenance, or compliance verification, where such access has been agreed between the Parties.

2.5. Third Party Software: Software may incorporate open-source components and other Third-Party Software. Details regarding these components and their governing terms shall be made available to the Licensee on Licensee’s portal. Licensee’s use of Software shall be subject to Licensee’s (and its Authorized Users’) compliance with all applicable third-party licensing terms identified in the Software and Documentation. Licensee shall be responsible for Authorized Users’ compliance with all applicable third-party licensing terms. Licensor shall ensure that Customers have adequate rights to use any Third-Party Software as required for the proper use of the Software under this Agreement. If any issue arises that prevents Customers from continuing such use, Licensor shall, at its option, either (a) provide an alternative that enables continued use of the Software; or (b) where a reasonable alternative cannot be provided, discontinue the affected part of the Software and refund the Fees paid in respect of that part. For clarity, Licensor shall not be liable for any issues arising from the Third-Party Software itself, except as expressly set out in this Agreement. Licensor shall notify Licensee if any Updates to Third-Party Software terms materially affect Licensee’s use of the Software and shall, where necessary, in its sole discretion, provide Licensee with the necessary updates to maintain compliance. Except as provided for under this Agreement, all Third-Party Software or its components therein are provided “AS IS” and “AS AVAILABLE” without warranty.

2.6. Feedback: Licensee may provide feedback or suggestions to the Licensor about the Software and Services. Any such feedback provided shall be non-confidential, and Licensee will not be identified publicly as the source of the feedback or suggestion. Licensee grants the Licensor a perpetual, irrevocable, royalty-free, and fully paid right to use and otherwise exploit in any manner any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by the Licensee to improve and enhance the Software and Services. The Licensee disclaims all right, title, and interest in and to any improvements or derivative works created by the Licensor based on such Feedback. Notwithstanding the foregoing, the Licensor shall have no obligation to review, implement, or respond to any Feedback provided by the Licensee.

2.7. Changes: The Parties may amend, supplement, or modify the terms of any existing Order Form by executing an Amendment Order Form. Each Amendment Order Form shall set out the specific changes agreed between the Parties, including any changes to the scope of Software access, Subscription Term, Fees, user quantities, or other commercial terms. Once executed by both Parties, the Amendment Order Form shall be deemed incorporated into and shall form part of this Agreement, and shall be subject to all terms and conditions herein unless expressly stated otherwise.

2.8. Modifications to Software:

1. Right to Modify: Licensor may, in its sole discretion, modify or update the Software from time to time without materially reducing or degrading its overall functionality. The Licensor shall use commercially reasonable efforts to provide prior written notice to the Licensee where any modification may affect the functioning of the Software materially. The Licensor shall not be responsible for ensuring backwards compatibility with any customizations or third-party integrations implemented by the Licensee, unless expressly agreed in writing.
2. Mandatory Updates: The Licensee acknowledges that certain Software Updates may be required as a condition of continued use of the Software, particularly where necessary to maintain security, regulatory compliance, or technical compatibility. Unless otherwise agreed in an Order Form, the Licensor shall not be obligated to provide support for any version of the Software that has been superseded by a more recent Software Update.

2.9. Modifications to Agreement:

1. Licensor may alter or change the terms of this Agreement from time to time by posting a modified version on hexnode.com/legal or on another website as identified by the Licensor. Unless notified by the Licensor, all modifications made to the Agreement will apply prospectively. Licensor will notify Licensee of any change (“Modification”) to the Agreement: (i) in accordance with Clause 14.2 (“Notice”); or (ii) by posting a notice in the Software console.
2. Except in circumstances where modifications are made to this Agreement to comply with Applicable Laws, the Licensee shall have the right to terminate the Agreement by providing thirty (30) days’ prior written notice to the Licensor. The Licensee’s continued access and use of the Software will constitute the Licensee’s acceptance of the Modifications. If Licensee terminates the Agreement in accordance with this Clause, Licensor will provide or authorize a pro rata refund of the Fees paid by the Licensee to Licensor or the respective reseller, respectively, for the remainder of the applicable Subscription Term. Notwithstanding anything stated in this Clause 2.9(b), Licensee shall remain liable to pay all Fees incurred prior to the date of termination. Termination under this Clause 2.9(b) shall be the Licensee’s sole and exclusive remedy in relation to any objection to Modifications made by the Licensor.

2.10. Support: Unless otherwise specified in the Order Form, the Licensor shall provide such Support Services with respect to the Software as set out in the Support Services Schedule available at https://www.hexnode.com/legal/xdr-support-schedule/. Additional Support Services may be available for an additional fee, as agreed upon in the Order Form or mutually in writing between the Parties.

§ 3. LICENSEE OBLIGATIONS

3.1. Licensee shall be solely responsible for:

1. accessing and using the Software in good faith and in accordance with the Documentation, Applicable Law, and this Agreement;
2. ensuring that Authorized Users access and use the Software in accordance with the Documentation;
3. determining the suitability of the Software for its internal business purposes;
4. appropriately configuring the Software;
5. all activity occurring under Licensee’s Software and Support Services account, including the rights and privileges the Licensee grants to its Authorized Users;
6. providing all reasonable information, cooperation, and assistance as the Licensor may require to deliver the Software or enable Licensee or its Authorized Users to use the Software;
7. implementing reasonable safeguards to prevent unauthorized access to or unauthorized use of the Software;
8. promptly notifying the Licensor of any unauthorized Software use or other suspected security breach;
9. providing complete and accurate information in connection with access to and use of the Software, including but not limited to providing reasonable Licensee, Authorized User contact details and information upon the Licensor or its authorized reseller’s request;
10. preventing any copying or distribution of the Software or Licensee Data;
11. notifying all Authorized Users about the Software and obtaining all necessary consent from them;
12. ensuring that Licensee owns or has all rights to use or transmit Licensee Data and obtain all necessary permissions and legal authority (including under data protection laws) to provide it to the Licensor and grant the Licensor the rights to use it in connection with this Agreement;
13. ensuring that Licensee and its Authorized Users comply with the Hexnode Terms of Use made available at hexnode.com/legal
14. ensuring that the environment in which the Software is installed (including hardware, operating system, and network configurations) meets the minimum system requirements communicated by the Licensor from time to time in writing;
15. ensuring that credentials, tokens, or keys used to access the Software are kept confidential and not shared beyond Authorized Users, and that access privileges are promptly revoked when Authorized Users cease to be engaged;
16. maintaining appropriate backup and disaster recovery mechanisms for Licensee Data and any configurations made in connection with the Software;
17. using any outputs, reports, or recommendations generated by the Software at its own risk, and verifying such output where it is relied upon for decision-making; and
18. cooperating with the Licensor, upon reasonable notice and during normal business hours, in any audit or review of the Licensee’s compliance with the terms of this Agreement, subject to reasonable confidentiality and operational safeguards.

3.2. Third Party Integrations: If Licensee requires Licensor to link, integrate or otherwise access third party websites, platforms, Software, services or information (“Third Party Integrations”), Licensor may provide such access, provided that Licensee acknowledges and agrees that (a) Third Party Integrations do not form part of the Software and Licensor does not control and is not responsible for Third Party Integrations; (b) the Licensee is responsible for obtaining and complying with any terms of access and use of the Third Party Integrations, including any separate fees or charges imposed by the provider of the Third Party Integrations; and (c) the Licensee is responsible for configuring the Third Party Integrations appropriately. The Licensor disclaims all responsibility and liability arising from or related to the Licensee’s access or use of the Third Party Integrations, including any impact on Software capabilities as a result of Licensee reliance or use of Third Party Integrations.

3.3. Licensee shall not use the Software to provide managed security, MSSP services, or multi-tenant services, unless expressly authorised in writing by Licensor.

§ 4. CONFIDENTIALITY

4.1. Each Party shall:

1. safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the same degree of care that it uses to protect its own Confidential Information of a similar nature, which in no event shall be less than a reasonable standard of care and in accordance with Applicable Laws;
2. disclose the Confidential Information to its personnel solely on a “need to know” basis and only for the purposes of this Agreement, and subject to confidentiality obligations no less restrictive than the confidentiality obligations imposed under this Agreement; and
3. promptly return or destroy, at the Disclosing Party’s sole discretion, all of the Confidential Information in its possession upon the expiry or termination of this Agreement. However, Receiving Party and its Affiliates may retain any Confidential Information that: (i) they are required to keep as required by Applicable Law, professional standards, a court, or regulatory agency; or (ii) have been created electronically pursuant to automatic or ordinary course archiving, back-up, security, or disaster recovery systems or procedures; provided, however, that any such retained information shall remain subject to the terms of this Agreement. Upon the Disclosing Party’s request, the Receiving Party shall provide the Disclosing Party with written confirmation of destruction of all Confidential Information in compliance with this provision.

4.2. The Parties agree that the Confidential Information shall not be used for any purpose other than as set forth in this Agreement.

4.3. The Parties agree that any breach or threatened breach of this Clause 4 may cause irreparable harm and injury to the disclosing Party for which monetary damages may be an inadequate remedy. Therefore, in addition to all other remedies available to the Disclosing Party under this Agreement or under Applicable Law, it shall be entitled to seek injunctive and other equitable relief as a remedy for any breach or threatened breach of this Clause 4.

4.4. If either Party becomes aware of any unauthorized use, disclosure, or dissemination of the other Party’s Confidential Information under their control (“Breach Event”), the Party in breach shall provide the other party with written notice within seventy-two (72) hours of becoming aware of the Breach Event.

4.5. This Clause 4 shall survive the expiry or termination of this Agreement.

4.6. Exceptions: The Receiving Party may disclose the Disclosing Party’s Confidential Information if required by Applicable Law, pursuant to a subpoena, court order, or regulatory direction (“Court Order”), in connection with a regulatory report, audit, or inquiry, or on a confidential basis to its legal or professional advisers. Where disclosure is made under a Court Order, the Receiving Party shall, to the extent legally permitted, promptly notify the Disclosing Party, cooperate in any efforts to object or seek protective relief, and disclose only the portion of Confidential Information legally required. The Disclosing Party shall reimburse the Receiving Party for its reasonable out-of-pocket legal fees and costs incurred in complying with such disclosure, including time spent on testimony or depositions at a reasonable hourly rate.

§ 5. DATA PROTECTION AND USAGE

5.1. Licensee’s Responsibility for Licensee Data and Warranties: Licensee agrees and acknowledges that it shall be solely responsible for all Licensee Data, including but not limited to its accuracy, quality, completeness, and legality. Licensee represents and warrants that:

1. it holds all necessary, desirable, and adequate rights, consents, and licenses to transmit the Licensee Data to Licensor and use the Licensee Data on the Software;
2. it will comply with all Applicable Laws when processing Licensee Data, and transferring Licensee Data to the Licensor;
3. it will take all reasonable and necessary steps to protect the confidentiality, integrity, and security of Licensee Data, including but not limited to: (i) controlling access to the Software that the Licensee provides to its Authorized Users; (ii) backing up Licensee Data; and
4. in the event that the Licensee submits any data for security analysis, the Licensee shall take all responsibility to minimize the inclusion of any personal data or any malicious data that may cause instability or damage Endpoints (“Security Analysis Data”). Licensee shall bear liability for all damages that may arise out of the submission of Security Analysis Data.

5.2. Processing of Licensee Data: All Licensee Data processed shall be governed by the Data Protection Addendum. The Data Protection Addendum is incorporated by reference into this Agreement. In the event of any conflict between the terms of the Data Protection Addendum and this Agreement, the terms of the Data Protection Addendum shall prevail.

5.3. Usage Data and Threat Data: Licensor may process Usage Data and Threat Data for: (a) providing, operating, and improving the Software and related systems and technologies; (b) diagnostic, development, maintenance and corrective purposes; and (c) generating aggregated, anonymized, de-identified or other unidentifiable data for analytical and product improvement purposes (“Inference Data”). The Licensor shall be deemed to hold all Intellectual Property Rights in such Inference Data. The Licensor may use or share Threat Data, where such data has been anonymized or de-identified so that it cannot be reasonably linked to any identifiable individual, the Licensee, or an Authorized User, for promoting security awareness, anti-spam efforts, and threat research. The Licensor will not disclose Usage Data or Threat Data containing any identifying information to any unaffiliated third-party except as required under Applicable Laws.

5.4. Exceptions: If the Licensee’s use of the Software requires compliance with a particular industry-specific data security standard or other data protection obligation of the kind (“Industry-specific standard”), Licensee shall be solely responsible for ensuring such compliance. The Licensee shall not use the Software in any manner that would subject the Licensor to the requirements of any Industry-specific standard without obtaining the Licensor’s prior written consent.

§ 6. INTELLECTUAL PROPERTY RIGHTS

6.1. As between the Parties, all right, title, and interest in and to the Software, Inference Data, Usage Data, Threat Data and the Documentation including: (a) the Source Code; (b) all improvements, enhancements or modification to the Services or Software; (c) any other software, application, invention or other technology developed by the Licensor in connection with the Services or Software; and (d) all Intellectual Property Rights therein; will belong to and will remain with the Licensor, except for any rights provided to the Licensee under this Agreement. With respect to any third-party materials accessed through or incorporated in the Software or Services, the Licensee agrees that the applicable Third-party Service Providers own all right, title, and interest, including all Intellectual Property Rights, in and to such third-party materials.

6.2. The Licensee agrees and acknowledges that Licensee does not have or acquire pursuant to or as a result of this Agreement, any ownership interest, license, lease, or any other interest in or with respect to the Software, Services, and Documentation other than as expressly provided for in this Agreement.

6.3. As between the Parties, the Licensee shall own all right, title and interest in and to (a) any Intellectual Property Rights existing prior to the Effective Date that was owned or developed by the Licensee or its licensee or Affiliates or subcontractors; (b) anything developed by Licensee independent of its relationship with the Licensor; (c) all Licensee Data shared or uploaded through the Software or Services in the course of using the Software or Services. The Licensor agrees and acknowledges that Licensee is and shall always be the rightful owner of Licensee Data.

6.4. The Licensee authorizes the Licensor to include the name and logo of Licensee as a representative of Licensee of the Software, including displaying the Licensee’s name and logo on the Licensor’s website and marketing materials. Notwithstanding anything stated in this Clause, if the Licensee objects to marketing materials, it may submit its objection to the Licensor in writing, at any time in general or in any particular instance. Based on the Licensee’s objections, the Licensor shall endeavor to modify the marketing material. If the Licensee is not satisfied with the Licensor’s proposed modification, it may withdraw its authorization by providing notice of thirty (30) days in accordance with Clause 14.2.

6.5. Source Code Restrictions: The Licensee acknowledges that the Source Code is the most proprietary and commercially sensitive component of the Software and forms the core of the Licensor’s Intellectual Property Rights. No rights, title, or interest in the Source Code are granted under this Agreement, whether by license, implication, estoppel, or otherwise. The Licensee shall not, directly or indirectly, access, use, copy, disclose, modify, reverse engineer, decompile, disassemble, or attempt to derive or recreate the Source Code, nor assist or permit any third party to do so. The Source Code shall be treated as strictly Confidential Information. Any actual or attempted access to, or misuse of, the Source Code by the Licensee shall constitute a material and irreparable breach of this Agreement. The Licensor shall be entitled to immediate injunctive relief, without the requirement of posting bond or proving special damage, in addition to all other remedies available at law or in equity.

§ 7. PAYMENT OF FEES

7.1. In consideration of the License and provision of the Software and the Services, the Licensee shall pay the fees set out in the Order Form (“Fees”) to the Licensor or to a reseller as set forth in the applicable Order Form. The Licensor reserves the right to change the Fees or applicable charges at its reasonable discretion at any time after the end of the Subscription Term or then-current Renewal Term, upon providing at least forty-five (45) days’ prior notice to the Licensee. If the Licensee believes that the Licensor has billed the Licensee incorrectly, the Licensee must contact the Licensor no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. All queries concerning billing shall be directed to legal@hexnode.com.

7.2. Overages: In the event the Licensee’s actual usage of the Software exceeds the use level as mentioned in its Order Form, the Licensor reserves the right to perform true-up reconciliation and charge for any such additional usage in accordance with the Licensor’s then price list. Licensor may invoice Licensee for such additional usage on (a) a pro-rata basis at the price per unit specified in the Order Form for the remaining period of the Subscription Term; and/or (b) the overages for usage for the relevant period at the price per unit specified in the Order Form.

7.3. The Licensee shall pay the Licensor all applicable Fees within thirty (30) days of the receipt of such invoice. Any delay in payments by the Licensee shall attract an interest of one and a half percent (1.5%) per month, accrued on a daily basis, or at the maximum permitted by Applicable Law, for each month of delay. The Licensor also reserves the right to collect all expenses incurred by the Licensor, including attorney’s fees, to facilitate the collection of Fees from the Licensee. If an invoice remains unpaid for more than ninety (90) days, the Licensor reserves the right to suspend the Licensor’s access to the Software or terminate the Agreement immediately by providing written notice to the Licensee. All payments shall be made to the Licensor without any deductions, set-off, or counterclaims.

7.4. The Fees are exclusive of applicable taxes, which shall be added to the invoice(s) raised by the Licensor at the appropriate rate. The Licensor may require the Licensee to maintain an active payment method on file with the Licensor. The Licensee agrees and acknowledges that Company may charge such payment method for Fees due hereunder in accordance with Clause 7.3.

7.5. Refund:

1. Except as provided for in this Agreement, all Fees and other amounts are non-refundable. There shall be no refund of Fees if the Licensee terminates the Agreement or discontinues its use of the Software or Services.
2. In no event will the expiry or termination of this Agreement relieve the Licensee of its obligation to pay any Fees payable for the period prior to the termination or expiry of this Agreement.

§ 8. MUTUAL WARRANTY AND DISCLAIMERS

8.1. Each Party represents and warrants to the other Party that:

1. it is a valid subsisting entity registered and existing under Applicable Law;
2. it has all the requisite power and authority to execute and deliver this Agreement and perform its obligations set out in this Agreement;
3. the person signing this Agreement on its behalf has been duly authorized and empowered to enter into this Agreement;
4. this Agreement is valid, binding, and enforceable against it in accordance with its terms;
5. the execution of this Agreement will not result in the violation of any of the terms and provisions of any other agreement, written or oral, to which it may be a party; and
6. it shall comply with all Applicable Laws.

8.2. In addition to Clause 8.1 above, the Licensor represents and warrants that:

1. the Services and Support Services will be provided in accordance with this Agreement and service levels provided by the Licensor, available at;
2. the Software will not be materially degraded during the Term of this Agreement; and
3. it will not knowingly introduce Malicious Code in the Licensee’s systems.

8.3. Subject to Clause 8.4 and Clause 8.5 of this Agreement, the Licensee’s sole and exclusive remedy for Licensor’s breach of the foregoing warranties shall be, at Licensor’s cost, for Licensor to: (a) correct the nonconformity in the Software/Services or provide a tenable workaround to remedy the nonconformity or replace the non-conforming portions with conforming units; or (b) issue a pro-rata refund of the Fees paid to Licensor for the period in which Licensor was in breach of the foregoing warranty. The foregoing warranties shall not apply if: (a) Licensee does not use the Software in compliance with this Agreement and in accordance with the Documentation; (b) Licensee or any third-party under the Licensee’s supervision makes any unauthorized modifications to the Software; (c) any defect arises out of the Licensee’s negligence, abuse or improper use of the Software; (d) the Software has been licensed under a Trial License; and (e) the Licensee fails to use Prerequisite Software.

8.4. Disclaimer EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAWS, LICENSOR AND ITS AFFILIATES EXPRESSLY DISCLAIM AND EXCLUDE ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SOFTWARE, DOCUMENTATION AND SERVICES, INCLUDING WITHOUT LIMITATION ANY AND ALL WARRANTIES OF MERCHANTABILITY, COMPATIBILITY, APPLICABILITY, USABILITY AND APPROPRIATENESS, FITNESS OR SUITABILITY FOR A PARTICULAR PURPOSE (IRRESPECTIVE OF WHETHER LICENSOR KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF SUCH PURPOSE), SATISFACTORY QUALITY, ACCURACY, NON-INFRINGEMENT O RCONDITION OF TITLE AND ANY WARRANTIES THAT MAY ARISE OUT OF THE COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. SOFTWARE IS PROVIDED BY THE LICENSOR “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SOFTWARE AND SERVICES IS AT LICENSEE’S SOLE RISK. LICENSOR DOES NOT GUARANTEE OR WARRANT THAT THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE OR SERVICES WILL MEET THE LICENSEE’S REQUIREMENTS OR THAT THE SOFTWARE OR SERVICES WILL IDENTIFY OR REPAIR ALL THREATS OR INDICATORS OF COMPROMISE. LICENSOR DISCLAIMS ALL LIABILITY ARISING OUT OF LICENSEE DATA, THIRD PARTY INTEGRATIONS, OR ANY OTHER SERVICES PROVIDED BY THIRD PARTIES. LICENSOR DISCLAIMS ALL LIABILITY FOR ANY INTERCEPTION OR INTERRUPTION OF COMMUNICATIONS VIA THE INTERNET OR SYSTEMS WHICH ARE OUTSIDE THE LICENSOR’S CONTROL.

8.5. Disclaimer on Critical Applications: LICENSEE SHALL NOT USE THE SOFTWARE IN ANY ENVIRONMENT OR IN ASSOCIATION WITH SAFETY CRITICAL APPLICATIONS WHERE THE FAILURE OF THE SOFTWARE TO PERFORM CAN REASONABLY RESULT IN DEATH, PERSONAL INJURY, LOSS OF PROPERTY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. ANY USE CONTRARY TO THIS DISCLAIMER IS AT LICENSEE’S OWN RISK AND LICENSOR SHALL NOT BE LIABLE FOR SUCH USE.

§ 9. LIMITATION OF LIABILITY

9.1. Disclaimer for Indirect Damages: EXCEPT FOR THE LIMITATIONS EXPRESSLY ACKNOWLEDGED IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR BE LIABLE TO LICENSEEE OR TO ANY THIRD FOR ANY DAMAGES FOR ANY LOSS OF SALES, PROFIT, GOODWILL, OR BUSINESS, THE COST OF PROCURING SUBSTITUTE SOFTWARE OR SERVICES, DATA LOSS OR CORRUPTION, SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, AND EXEMPLARY DAMAGES RESULTING FROM OR IN CONNECTION WITH THE AGREEMENT OR LICENSEE’S USE, OR INABILITY TO USE THE SERVICE OR OTHER SOFTWARE OR SERVICES HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, EVEN IF LICENSOR HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSEE AGREES TO EXERCISE DUE CAUTION AND PERFORM ITS OWN DILIGENCE WHILE ARRIVING AT ANY FORM OF DECISION DURING THE USE OF THE SERVICES. THE LICENSOR SHALL HOLD NO RESPONSIBILITY AND DOES NOT RENDER ANY ADVICE OR SUGGESTIONS, DIRECTLY OR INDIRECTLY, TO THE LICENSEE ON ANY BUSINESS OR COMMERCIAL DECISION.

9.2. Direct Damages: Notwithstanding anything to the contrary, the maximum aggregate liability of the Licensor and its Affiliates, for any loss incurred by the Licensee, shall not exceed the total Fees paid by the Licensee for a period of twelve (12) months preceding the date of claim of liability.

§ 10. INDEMNITY

10.1. The Licensee agrees to indemnify, defend, and hold harmless the Licensor, its affiliates, and their respective directors, officers, and personnel from and against any and all claims and expenses (including reasonable attorney’s fees) arising out of a breach of any provision of this Agreement by the Licensee or any third-party claim arising from or connected to the Licensee’s or its Affiliates’ use of the Software or Services.

10.2. The Licensor shall at its cost and expense: (a) defend and/or settle any claim brought against the Licensee by an unaffiliated third party alleging that the Software infringes or violates that third party’s Intellectual Property Rights; and (b) pay and indemnify any settlement of such claim or any damages awarded to such third party by a court of competent jurisdiction as a result of such claim; provided, that the Licensee: (i) provides the Licensor prompt written notice of such claim; (ii) permits the Licensor to solely control and direct the defence or settlement of such claim (however, the Licensor will not settle any claim in a manner that requires the Licensee to admit liability without the Licensee’s prior written consent); and (iii) provides the Licensor all reasonable assistance in connection with the defence or settlement of such claim, at Licensor’s cost and expense. In addition, Licensee may, at Licensee’s own expense, participate in the defense of any claim.

10.3. Remedies: If a claim covered under Clause 10.2 of this Agreement occurs or in the Licensor’s opinion is reasonably likely to occur, the Licensor may at its expense and sole discretion: (a) procure the right to allow the Licensee to continue using the Software; (b) modify or replace the applicable Software to become non-infringing; or (c) if neither (a) nor (b) is commercially practicable, terminate Licensee’s License or access to the affected portion of applicable Software and refund a portion of the pre-paid and unused Fees paid by the Licensee corresponding to the unused period of the Subscription Term.

10.4. Exclusions: The Licensor’s obligations under Clause 10.2 or Clause 10.3 of this Agreement shall not be applicable if the claim is based upon or arises out of: (a) any unauthorized modification to the Software by the Licensee or a third party; (b) any combination or use of the Software with or in any third party software, hardware, process, firmware, or data, to the extent that such claim is based on such combination or use; (c) the Licensee’s continued use of the allegedly infringing Software after being notified of the infringement claim or after being provided a modified version of the Software by Licensor at no additional cost that is intended to address such alleged infringement; (d) the Licensee’s failure to use the Software in accordance with the applicable Documentation; and/or (e) the Licensee’s use of the Software outside the scope of the rights granted under this Agreement.

10.5. Exclusive Remedy: THE REMEDIES SPECIFIED IN THIS CLAUSE 10 CONSTITUTE LICENSEE’S SOLE AND EXCLUSIVE REMEDIES, AND LICENSOR’S ENTIRE LIABILITY, WITH RESPECT TO ANY INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.

§ 11. TERM AND TERMINATION

11.1. Term: This Agreement shall remain in effect until the expiry of the applicable Subscription Term or Trial Term, unless earlier terminated in accordance with Clause 11.2 of this Agreement. Unless otherwise specified in the Order Form, the Agreement shall automatically renew for successive Renewal Terms of one (1) year each, unless either Party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.

11.2. Termination for Cause: Either Party may terminate this Agreement with immediate effect by providing written notice to the other Party, if:

1. the other Party commits a material breach of any term of this Agreement, and if such breach is remediable, fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so;
2. the other Party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
3. the other Party is dissolved, wound-up, surrenders its charter documents, makes a petition for bankruptcy, makes a proposal to its creditors, or has a receiving order made against it.

11.3. Effect of Termination: Upon the expiry or termination of this Agreement:

1. the Licensee’s right to use the Software and Services shall cease immediately.
2. Licensee Data shall be made available on or through the Software for a period of thirty (30) days from the date of termination (“Post Termination Retention Period”) during which the Licensee may download the Licensee Data. For the avoidance of doubt, upon the expiry of the Post Termination Retention Period, the Licensor shall continue to retain data to the extent required by Applicable Law. Notwithstanding the foregoing, the Licensee agrees and acknowledges that the Licensor has no obligation to Licensee to retain the Licensee Data after the Post Termination Retention Period, which may thereafter be permanently deleted by the Licensor.
3. the Parties shall immediately destroy (or return), at the request of the disclosing Party, Confidential Information of the disclosing Party; and
4. the Licensee shall pay any amounts payable or due to the Licensor no later than five (5) working days from the date of expiry or termination of this Agreement (as the case may be).

11.4. The Licensor may, at its sole discretion, suspend Licensee’s access to or use of the Software or Support Services if the Licensee is in default of any payment obligations under this Agreement.

11.5. In addition to the rights set forth above, the Licensor reserves the right to suspend Licensee’s access to or use of the Software or Support Services if Licensor reasonably believes that Licensee is using the Licensee or Support Services in a manner or for a purpose that is not contemplated by the Documentation and is likely to cause harm to Licensor or a third party. For any such suspension, once the issue is resolved by Licensee and confirmed by Licensor, Licensor shall reinstate the access to or use of the Software and Support Services as quickly as commercially possible.

§ 12. EXPORT CONTROL

12.1. Export Compliance: The Licensee is solely responsible for ensuring that the Software is used, accessed, and disclosed in compliance with Sanctions and Export Control Laws. Licensee certifies that the Licensee or its Authorized Users and Affiliates, or any party that owns or controls Licensee or Authorized Users and Affiliates, are not (a) ordinarily resident in, located in, or organized under the laws of any country or region subject to economic or financial trade sanctions or trade embargoes imposed, administered, or enforced by the European Union, the United Kingdom, or the United States; (b) an individual or entity on the Consolidated List of Persons, Groups, and Entities Subject to European Union Financial Sanctions; the U.S. Department of the Treasury's List of Specially Designated Nationals and Blocked Persons or Foreign Sanctions Evaders List; the U.S. Department of Commerce's Denied Persons List or Entity List; or any other sanctions or restricted persons lists maintained by the European Union, the United Kingdom, or the United States; or (c) the target or subject of any Sanctions and Export Laws. Licensee further certifies that it and its Affiliates and Authorized Users will not, directly or indirectly, export, re-export, transfer, or otherwise make available (i) the Software, or (ii) any data, information, software programs, and/or materials resulting from the Software (or direct Software thereof) to any person described in (a) through (c) above or in violation of, or for any purpose prohibited by, sanctions and export control laws, including for proliferation-related end uses. Licensee agrees that Licensor has no obligation to provide the Software where the Licensor believes the provision of the Software could violate sanctions and export control laws. Licensor may immediately suspend or terminate the Services without liable if Licensor reasonably determines that continued provision would violate applicable export control, sanctions, or trade laws.

12.2. Each Party agrees to comply with all Applicable Laws to the actions and obligations contemplated by this Agreement. Each Party warrants that, during the term of this Agreement, neither party nor any of its officers, employees, agents, representatives, contractors, intermediaries, or any other person or entity acting on its behalf has taken or will take any action, directly or indirectly, that contravenes (a) the United Kingdom Bribery Act 2010; (b) the United States Foreign Corrupt Practices Act 1977; or (c) any other applicable anti-bribery laws or regulations anywhere in the world.

§ 13. MITSOGO CONTRACTING PARTY, DISPUTE RESOLUTION, CHOICE OF LAW, JURISDICTION AND VENUE:

13.1. For the purposes of this Agreement, “Licensor” or “Mitsogo Contracting Entity” means the Mitsogo entity responsible for providing the Software and Services to the Licensee. The applicable Mitsogo Contracting Entity, together with the corresponding governing law and exclusive venue, is determined based on the location of the Licensee’s principle place of business, as set out in the table below.

13.2. Unless the Parties expressly agree otherwise in an Order Form signed by both Parties, the Mitsogo Contracting Entity, governing law and venue applicable to this Agreement shall be solely as specified in the table below for the region in which the Licensee’s principal place of business is located (i.e. its registered corporate headquarters, unless otherwise agreed in writing).

13.3. If, at any time, the Licensee’s principal place of business changes to a different region listed in the table, the Parties agree that this Agreement shall automatically be deemed assigned to the corresponding Mitsogo Contracting Entity for that region, without the need for any further action by either Party.

13.4. Any dispute, controversy, or claim arising out of or relating to this Agreement between the Parties, including any questions regarding its existence, validity or termination (“Disputes”) shall be resolved in the manner prescribed for the applicable region in the table below, which depending on the region, may require arbitration or litigation, before the courts identified therein. Where the table specifies arbitration, such arbitration shall be conducted in English and in accordance with the arbitral rules (then in effect) identified for that region. If arbitration is commenced prior to the completion of the Services, the obligations of the Parties under the terms of the Agreement shall not be altered by reason of arbitration being conducted. The Parties further agree that non-appearance based arbitration shall be used if the amount in controversy is less than $10,000 and if permitted by the applicable arbitral rules. Where the table specifies litigation, each Party irrevocable submits to the exclusive jurisdiction and venue of the Courts identified therein. The prevailing Party in any arbitration relating to any Dispute shall be entitled to recover from the other Party those reasonable attorney fees, costs and expenses incurred by the prevailing party in connection with the Dispute.

13.5. The Governing law and the Courts/forums that have exclusive jurisdiction over any dispute arising out of or relating to this Agreement correspond to the Mitsogo Contracting Entity listed below. Each Party agrees to the applicable law and venue shown in the table, and waives any objection regarding personal jurisdiction, forum, or inconvenience of venue. The United Nations Conventions of Contracts for the International Sale of Goods does not apply.

§ 14. GENERAL

14.1. Assignment: Licensee may not sublicense, assign, or transfer its rights or obligations under this Agreement without Licensor’s prior written consent. Licensor may in its sole discretion, assign, novate, subcontract, or otherwise transfer any of its rights or obligations hereunder.

14.2. Notice: Licensor may provide Licensee with notice (a) if applicable to the Software, by means of a general notice on the Software portal, on the hexnode.com website, or any other website used as part of the Software; and (b) if specific to the Licensee, by electronic mail to the e-mail address in Licensor’s records. All notices to Licensor concerning this Agreement will be addressed to The Legal Department, Mitsogo Inc., 900 North Point Parkway, Suite 350, Alpharetta, Georgia 30005, with a copy to legal@hexnode.com.

14.3. Waiver & Severability: Failure by either Party to enforce any term or condition of this Agreement will not be construed as a waiver of any of its rights under it. If any provision of the Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement will remain in force to the fullest extent permitted by law.

14.4. Force Majeure: Except for payment obligations, neither Party will be liable to the other for any delay or failure to perform any obligations under this Agreement due to circumstances beyond such Party’s reasonable control. If a Force Majeure Event affecting the Licensee continues for a period exceeding ninety (90) days, the Licensor shall have the right to terminate this Agreement upon providing written notice to the Licensee, without liability.

14.5. Audit Rights: The Licensor may audit Licensee’s use of the Software to verify that Licensee’s usage complies with the Terms of this Agreement and the Order Form, including, without limitation, through self-certifications, on-site audits, and/or audits done using an independent third-party auditor. An audit will be done upon reasonable notice and during normal business hours, but not more often than once each year unless a material discrepancy was identified during the course of a prior review. Licensee further agrees to keep accurate records sufficient to certify Licensee’s compliance with this Agreement, and, upon Licensor’s request, Licensee will promptly provide the necessary details certifying Licensee’s aggregate usage of the Software. Licensor will bear the costs of any such audit (other than Licensee’s costs associated with any self-certification), except where the audit demonstrates that the amount of the underpayment exceeds five percent (5%) of the fees due. In such a case, in addition to purchasing and paying for such additional usage, Licensee will reimburse Licensor all reasonable and demonstrable costs of the audit.

14.6. United States Government Uses; Non-Waiver of Government Immunity: The Software and Documentation are considered “commercial computer software” and “commercial computer software documentation” for the purposes of FAR 12.212 and DFARS 227.7202, as amended, or equivalent provisions of agencies that are exempt from the FAR or that are U.S. state or local government agencies. Any use, modification, reproduction, release, performance, display, or disclosure of the Software by the U.S. Government and U.S. state and local government agencies will be governed solely by this Agreement, and except as otherwise explicitly stated in this Agreement, all provisions of this Agreement shall apply to the U.S. Government and U.S. state and local government agencies. If Licensee is a federal, state, or other governmental instrumentality, organization, agency, institution, or subdivision, the limitations of liability and Licensee’s indemnity obligations herein shall apply only in the manner and to the extent permitted by applicable law, and without waiver of Licensee’s constitutional, statutory, or other immunities, if any.

14.7. Survival: The following clauses, together with any other terms necessary for the interpretation or enforcement of this Agreement, will survive termination or expiry of this Agreement: 1 (Definitions), 4 (Confidentiality) for five (5) years, 5 (Data Protection and Usage), 6 (Intellectual Property Rights), 7 (Payment of Fees), 8 (Mutual Warranty and Disclaimers), 9 (Limitation of Liability), 10 (Indemnity), 11.3 (Effect of Termination), 13(Mitsogo Contracting Party, Dispute Resolution, Choice of Law, Jurisdiction and Venue:) and 14 (General).

14.8. Independent Parties: Licensor and Licensee are independent contractors, and nothing in this Agreement will create a partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties.

14.9. Entire Agreement: If Licensor and Licensee have signed a separate written agreement covering access and use of the Software, the terms of such signed agreement will take precedence over any conflicting terms of this Agreement. Otherwise, this Agreement, the applicable Order Form or Amendment Order Form, the applicable Data Protection Addendum and the documents and policies referenced herein constitute the entire agreement between the parties with respect to the Software and supersede all prior or contemporaneous oral or written communications, agreements or representations with respect to the Software. In the event of any conflict or inconsistency between this Agreement and any other document referenced herein, the following order of precedence shall apply, with the higher-ranking document controlling: (i) Order Form; (ii) Any signed amendment or addendum; (iii) this Agreement; (iv) the Data Processing Addendum; (v) Support Schedule Addendum; (vi) Documentation. If there are any inconsistencies between the English language version of this Agreement and any translated version, the English language version shall prevail.