Umbra Cloud Service Agreement

READ CAREFULLY THIS UMBRA CLOUD SERVICE AGREEMENT (“AGREEMENT”), WHICH CONTAINS THE EXCLUSIVE TERMS AND CONDITIONS BETWEEN UMBRA SOFTWARE OY, WITH AN ADDRESS AT KALEVANKATU 30, 00100 HELSINKI, FINLAND (“UMBRA”), AND YOU OR THE BUSINESS ENTITY OR OTHER ORGANIZATION THAT YOU REPRESENT (“CUSTOMER”), REGARDING ACCESS AND USE OF THE UMBRA CLOUD SERVICE (“SERVICES”). THE SERVICES ARE AVAILABLE ONLY TO INDIVIDUALS WHO ARE AT LEAST 18 YEARS OLD, WHO ARE ACTING FOR THEMSELVES OR IN THEIR CAPACITY AS AN EMPLOYEE OR REPRESENTATIVE OF A BUSINESS ENTITY OR OTHER ORGANIZATION. YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT, UNDER ALL APPLICABLE LAWS, ON BEHALF OF YOURSELF OR ON BEHALF OF SUCH BUSINESS ENTITY OR OTHER ORGANIZATION IN YOUR CAPACITY AS AN EMPLOYEE OR REPRESENTATIVE OF SUCH BUSINESS ENTITY OR OTHER ORGANIZATION. BY SIGNING UP TO THE SERVICES, CREATING AN ACCOUNT OR BY ACCESSING OR USING THE SERVICES IN ANY MANNER (“ACCEPTANCE”), YOU WILL CREATE A LEGALLY ENFORCEABLE CONTRACT WHERE YOU OR THE BUSINESS ENTITY OR OTHER ORGANIZATION YOU REPRESENT AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT WITHOUT MODIFICATION. ANY PURCHASE ORDER OR SIMILAR TERMS SHALL NOT APPLY.

IF YOU CANNOT OR DO NOT AGREE TO ALL TERMS AND CONDITIONS IN THIS AGREEMENT, OR IF YOU ARE NOT ELIGIBLE OR AUTHORIZED TO DO SO, YOU SHOULD NOT SIGN UP TO THE SERVICES AND YOU ARE PROHIBITED FROM ACCESSING OR USING THE SERVICES.

THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE THAT REQUIRES DISPUTES TO BE ARBITRATED ON AN INDIVIDUAL BASIS, AND PROHIBITS CLASS ACTION CLAIMS. IT AFFECTS HOW DISPUTES BETWEEN YOU AND UMBRA OR THE BUSINESS ENTITY OR OTHER ORGANIZATION THAT YOU REPRESENT AND UMBRA ARE RESOLVED. BY ACCEPTING THE TERMS AND CONDITIONS OF THIS AGREEMENT BY SIGNING UP TO THE SERVICES, CREATING AN ACCOUNT OR ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THIS ARBITRATION PROVISION. PLEASE READ IT CAREFULLY.

TERMS AND CONDITIONS

1. SERVICES AND SUPPORT

1.1. To sign up for the Services, Customer must first register for an account on the Services (an “Account”). Customer must provide accurate and complete information and keep its Account information updated.

1.2. Subject to the terms and conditions of this Agreement, Umbra will provide Customer with access to the Services through the internet. Customer may access the Services only for its internal development purposes and in accordance with all conditions set forth on the Umbra website for the applicable Services package selected by Customer (such as, for example, restrictions regarding the number or identity of authorized users, number of concurrent streams that may be streamed from the Services or capacity limits). The Services may be used to automatically optimize any 3D content – allowing users to choose the outcome between graphical fidelity and real-time performance – to be displayed on any device. The Services may be used with certain software made available by Umbra from time-to-time under a separate agreement for use in connection with the Services. For example, the Umbra viewer is a tool for users to visualize their content after it has been optimized by the Services. The Umbra plugins enable quick use of the Services with third party platforms such as Unity and Revit, and if a plugin is not available for a particular third party platform, then a user may use the Umbra SDK, that includes the Umbra API, to enable use of the Services with such platform. The Services are subject to modification from time to time at Umbra’s sole discretion, for any purpose deemed appropriate by Umbra. Any and all such modifications to the Services shall, for the purposes of this Agreement, be deemed to be included in Services.

1.3. Umbra will undertake commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week Notwithstanding the foregoing, Umbra reserves the right to suspend Customer’s or any of its authorized users’ access to the Services: (i) for scheduled or emergency maintenance, (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Umbra, or (iii) if Umbra receives an order of any court of competent jurisdiction or any regulatory, judicial, governmental or similar body, that expressly or by reasonable implication requires Umbra to suspend or terminate Customer and/or any authorized user’s access to the Services.

1.4. Subject to the terms hereof, Umbra will provide reasonable support to Customer for the Services via email during Umbra’s normal business hours (Monday-Friday, 8:00am – 6:00pm EEST, excluding bank holidays in Helsinki, Finland). Any and all support requests should be sent via email to support@umbra3d.com. Umbra will acknowledge or provide a response to any and all support requests received during Umbra’s business hours at such email address within one (1) business day after receipt thereof. For the sake of clarity, if a support request is received on Friday during Umbra’s business hours, then Umbra will acknowledge or provide a response to such support request some time on Monday during Umbra’s business hours at the latest.

2. RESTRICTIONS AND RESPONSIBILITIES

2.1. Customer will not, directly or indirectly, and will not permit or enable any third party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to, discover the source code, object code or underlying structure, ideas or algorithms of the Services (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (ii) bypass or breach any security device or protection used by the Services or access or use the Services other than by an authorized user through the use of his or her own then valid access credentials; (iii) input, upload, transmit or otherwise provide to or through the Services, any information or materials that are unlawful or injurious, or contain, transmit or activate any malicious code; (iv) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede in any manner the Services, in whole or in part; (v) except as expressly and specifically authorized in this Agreement, rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services to any person, including, without limitation, through any time-sharing or service bureau service; (vi) access or use the Services for purposes of competitive analysis of the Services, the development, provision or use of a competing software service or product or any other purpose that is to Umbra’s detriment or commercial disadvantage; (vii) modify, translate, or create derivative works based on the Services; or (viii) use the Services other than in accordance with this Agreement, with all applicable laws and regulations, and, in the case of Third Party Services (as defined below), in compliance with the applicable third-party license agreement. If Customer becomes aware of any actual or threatened activity prohibited by Sections 1.2 or 2.1, Customer shall promptly: (a) take all reasonable and lawful measures within its control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services); and (b) notify Umbra of any such actual or threatened activity.

2.2. Customer shall set up, and at all times during the Service Term (as defined below), maintain and operate in good repair all Customer Systems (as defined below) on or through which the Services are accessed or used, in accordance with any and all specifications provided by or on behalf of Customer in relation thereto (if applicable). “Customer System” means Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of any third-party service. Customer will cooperate with Umbra in connection with the performance of this Agreement by making available such personnel and information and access to other resources as may be reasonably required, and taking such other actions as Umbra may reasonably request. Customer will also cooperate with Umbra in establishing a password or other procedures for verifying that only designated employees and independent contractors of Customer have access to the Services. Customer shall use commercially reasonable efforts to ensure that each of its authorized users comply with all applicable obligations and restrictions imposed on Customer under this Agreement. Any breach of any such obligations and restrictions by any such authorized users shall be deemed a breach by Customer of its obligations under this Agreement, and Customer shall be responsible and liable for any breach of any such obligations by any such authorized users. Umbra is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement.

2.3. Customer hereby agrees to indemnify and hold harmless Umbra against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of Section 1.2 or 2.1 or otherwise from Customer’s use of Services (except for claims or actions that arise from matters for which Umbra has agreed to indemnify Customer pursuant to Section 4.4). Although Umbra has no obligation to monitor the content provided by Customer or Customer’s use of the Services, Umbra may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of Section 2.1.

2.4. Customer will be responsible for maintaining the security of Customer account, passwords and files, and for all uses of Customer’s account with or without Customer’s knowledge or consent. Customer has and will retain sole responsibility for any: (i) information, instructions or materials provided to the Services through its account or otherwise provided by or on behalf of it to Umbra; and (ii) conclusions, decisions or actions based on its use of the Services and the results thereof.

2.5. Customer further acknowledges, agrees to and is bound by the Privacy Policy on Umbra’s website (as it may be updated from time to time), except to the extent expressly and directly in conflict with the terms hereof.

2.6. Customer acknowledges and agrees that the Services may operate on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). Umbra is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services (except for Third Party Services provided by Umbra to Customer as part of the Services) and for complying with any applicable terms or conditions related to any Third Party Services. Umbra does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.

3. CONFIDENTIALITY

3.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business that is marked or otherwise identified as “proprietary” or “confidential” at the time of disclosure or is disclosed in such a manner or of such a nature that a reasonable person should understand such information to be proprietary or confidential (hereinafter referred to as “Proprietary Information” of the Disclosing Party). For the sake of clarity, the Services are deemed to be Proprietary Information of Umbra.

3.2. The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, except as expressly provided in subsection (ii) directly below, (ii) to give access to such Proprietary information solely to those employees and independent contractors with a need to have access thereto for purposes of this Agreement, (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information, and (iv) use Proprietary Information only to provide Services or as otherwise expressly provided in this Agreement. The Receiving Party shall be responsible and liable for any breaches of confidentiality by any of its employees and independent contractors. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action or omission by, or involvement of, the Receiving Party, or (b) was rightfully in the possession of the Receiving Party or known by the Receiving Party without any obligations of confidentiality prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without any obligations of confidentiality by a third party, or (d) was independently developed by the Receiving Party without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure and reasonably cooperates with the Disclosing Party in the exercise of its right to protect the confidentiality of its Proprietary Information before any tribunal or governmental agency. In any event, Umbra may collect data with respect to, and report on, the aggregate response rate and other aggregate measures of the Services’ performance.

4. INTELLECTUAL PROPERTY RIGHTS

4.1. Except as expressly set forth herein, Umbra alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Services and any suggestions, ideas, enhancement requests, feedback, recommendations and other similar information provided by or on behalf of Customer relating to the Services, which are hereby assigned to Umbra. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services or any intellectual property rights.

4.2. Customer shall retain all right, title and interest in and to the any data, information or other material provided, uploaded, or submitted by Customer to the Services in the course of using the Services, for example, 3D data (geometry, textures, etc.) and related technical information (e.g. computation parameters) (“Customer Data”), including all intellectual property rights therein. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. Customer shall deliver Customer Data in an electronic form and format approved by Umbra, and Customer shall back up and retain Customer Data in accordance with commercially reasonable and industry standard back up and retention policies. Notwithstanding anything to the contrary, Umbra is hereby granted (i) a non-exclusive, royalty-free, worldwide, transferable license and right to internally use, copy, modify, create derivative works of, and disclose Customer Data for the purposes of providing the Services to Customer and (ii) a non-exclusive, irrevocable, perpetual, royalty-free, fully paid-up, worldwide, transferable license and right to generate Aggregated Anonymous Data (as defined below) and to freely use, copy, modify, create derivative works of, disclose and make available to third parties for their use and other exploitation, and otherwise exploit Aggregated Anonymous Data for any business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing products and services). “Aggregated Anonymous Data” means data submitted to, collected by, or generated by Umbra in connection with Customer’s use of the Services, but only in aggregate, anonymized form which doesn’t specifically identify Customer. If Umbra receives any notice or claim that any Customer Data, or activities hereunder with respect to any Customer Data, may infringe or violate rights of a third party (a “Claim”), Umbra may (but is not required to) suspend activity hereunder with respect to that Customer Data and Customer shall indemnify Umbra from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Claim, as incurred.

Unless otherwise agreed in writing and without limiting any of Umbra’s rights described above with respect to Aggregated Anonymous Data, Umbra shall provide the Customer with the Customer Data within thirty (30) days after receipt of Customer’s reasonable written request therefor. Customer Data shall be delivered in the form currently in Umbra’s possession. Umbra shall have the right to charge for the collection, processing and delivery of such information in accordance with its then current price list. Umbra's responsibility to keep Customer Data terminates sixty (60) days from termination or expiration of this Agreement, after which Umbra may at its own expense destroy the Customer Data unless the Customer has expressly requested return of the Customer Data during such period.

4.3. In addition to processing of the Customer Data, Umbra and its subcontractors may process data with contact details, payment information and identification data on the Customer and its employees and other representatives ("Account Data"). If Umbra processes Account Data or any other data considered personal data on behalf of the Customer: (i) the parties hereby record their intention that the Customer shall be the data controller and Umbra shall be a data processor in respect of such personal data; (ii) the Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Customer and its authorized users are located in order to provide the Services and perform Umbra’s other obligations under this Agreement; (iii) Customer shall ensure that Customer is entitled to transfer the relevant personal data to Umbra so that Umbra may lawfully use, process and transfer the personal data in accordance with this Agreement on behalf of Customer; (iv) Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation; (v) Umbra shall process the personal data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by the Customer from time to time; (vi) Umbra shall process the personal data only for the purpose of providing the Services and to the extent and for the duration necessary for providing the Services; (vii) Umbra shall ensure that Umbra’s personnel authorised to process the personal data have committed themselves to confidentiality; (viii) Umbra shall reasonably and when possible, taking into account the nature and scope of processing, assist Customer in fulfilling Customer’s obligation to respond to requests relating to data subjects’ statutory rights; (ix) Umbra shall reasonably and when possible, taking into account the nature and scope of processing, assist Customer in ensuring compliance with Customer’s obligations to perform security and data protection assessments, security incident notifications and/or prior consultations of the competent supervisory authority; and (x) each party shall take appropriate technical and organizational measures against unauthorized or unlawful processing of the personal data or its accidental loss, destruction or damage. Customer hereby authorizes Umbra to use subcontractors and other processors in the processing of personal data carried out under this Agreement.

4.4. Except as provided below, Umbra agrees to (i) defend Customer against any claim by a third party that any Services (excluding Customer Data and Third Party Services) infringes a valid patent or any copyright or trade secret of such third party and (ii) indemnify Customer for settlement amounts or damages, liabilities, costs and expenses (including reasonable attorneys' fees) finally awarded and arising out of such claim. If any such Services becomes or, in Umbra’s opinion, is likely to become the subject of any injunction preventing its use as contemplated herein, Umbra may, at its option (a) obtain for Customer the right to continue using such Services or (b) replace or modify such Services so that they become non-infringing without substantially compromising their principal functions. If (a) and (b) are not reasonably available to Umbra, then it may (c) terminate this Agreement upon written notice to Customer and refund to Customer any and all amounts pre-paid by Customer to Umbra for the Services that have not yet been incurred. Umbra shall have no liability or obligation to Customer hereunder with respect to any claim based upon (1) any use of the Services not strictly in accordance with this Agreement, (2) use of any Services in an application or environment or on a platform or with devices for which it was not designed or contemplated, (3) alterations, combinations or enhancements of the Services not created by Umbra, (4) that portion of any of the Services which implements Customer's requirements, (5) Customer's continuing allegedly infringing activity after being notified thereof or its continuing use of any version of the Services after being provided modifications that would have avoided the alleged infringement or (6) any intellectual property right in which Customer or any of its affiliates has an interest. The foregoing states the entire liability of Umbra, and Customer's exclusive remedy, with respect to any actual or alleged violation of intellectual property rights by any Services or any part thereof or by their use or operation. Umbra’s obligations hereunder are conditioned on (A) Customer providing prompt written notice of the applicable claim and reasonable cooperation, information, and assistance in connection therewith and (B) Umbra having sole control and authority to defend, settle or compromise such claim. Umbra shall not be responsible for any settlement it does not approve in writing.

5. PAYMENT OF FEES

5.1. Customer will pay Umbra the fees set forth on the Umbra website for the applicable Services package selected by CustomerUmbra’s website (the “Fees”). The Fees will be automatically charged to Customer’s credit card on file at the beginning of each calendar month. For the first and last month of the Service Term, such fee shall be prorated for the number of days in such calendar months for which the Services are provided. Subject to reasonable documentation, Customer agrees to reimburse Umbra for its costs and expenses reasonably incurred in providing the Services and other services under this Agreement. If not otherwise specified, payments will be due within fourteen (14) days of the date of an invoice.

5.2. Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding taxes based on Umbra's net income) unless Customer has provided Umbra with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Customer on account thereof.

5.3. Umbra may increase the Fees, in whole or in part, no more than once per calendar year, by an amount not to exceed ten percent (10%) upon at least sixty (60) days prior notice to Customer.

6. TERMINATION

6.1. Subject to earlier termination as provided below, this Agreement is for the Service Term as specified on the Umbra website for the applicable Services package selected by Customer.

6.2. Either party may terminate this Agreement at any time, for any or no reason, upon at least thirty (30) days prior written notice to the other party.

6.3. Sections 2.1, 2.2 (the last two sentences only), 2.3, 2.4, 2.5, 2.6, 3, 4 (other than Section 4.3), 5 (for amounts owed up to the date of termination) and 6 through 10, and any and all remedies for breach of this Agreement, shall survive any termination of this Agreement.

7. WARRANTY DISCLAIMER

EXCEPT AS OTHERWISE EXPLICITLY PROVIDED HEREIN, THE SERVICES, SUPPORT SERVICES, Umbra PROPRIETARY INFORMATION, ALL THIRD PARTY SERVICES, AND ANYTHING ELSE PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND. UMBRA (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY SERVICES IS STRICTLY BETWEEN CUSTOMER AND THE THIRD PARTY LICENSOR OR SUPPLIER OF THE THIRD PARTY SERVICES.

8. LIMITATION OF LIABILITY

EXCEPT IN THE CASE OF DEATH, BODILY INJURY OR FRAUD OR TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW, IN NO EVENT WILL Umbra (OR ANY OF ITS DIRECTORS, MEMBERS, EMPLOYEES, AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR (I) ANY INDIRECT, PUNITIVE, RELIANCE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, (ii) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (iii) THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING OTHER PROVIDED IN CONNECTION WITH THIS AGREEMENT or (iv) amounts, IN THE AGGREGATE, that exceed THE FEES PAID TO Umbra HEREUNDER IN THE six (6) MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED, OR us $50, WHICHEVER IS GREATER, in each case, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF Umbra HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE FOREGOING LIMITATION IN THIS SECTION SHALL NOT LIMIT UMBRA’S LIABILITIES ARISING OUT OF ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

9. U.S. GOVERNMENT MATTERS

Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively, “Controlled Subject Matter”), in violation of any applicable restrictions, laws or regulations. As defined in FAR section 2.101, any software and documentation provided by Umbra are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Umbra’s prior written consent. This Agreement will be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties. Umbra may transfer and assign any or all of its rights and obligations under this Agreement with written notice to Customer. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Umbra in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing, in English and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Neither party shall be liable for delay and damage caused by an impediment beyond the party’s control. Such force majeure events shall include, without limitation, war or insurrection, earthquake, flood or other similar natural catastrophe, interruptions in general traffic, data communication or supply of electricity, import or export embargo, strike, lockout, boycott or other similar industrial action. This Agreement will be governed by the laws of the State of New York without regard to its conflict of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any dispute arising from or relating to this Agreement that cannot be resolved by the parties within a period of thirty (30) days after notice of a dispute has been given by one party to the other (the last day of such thirty (30) day period being referred to herein as the “Arbitration Date”), shall be finally settled by arbitration in accordance with the Rules of Arbitration of the International Chamber of Commerce as currently in force (the “Arbitration Rules”). The place of arbitration shall be New York, New York, U.S.A. There shall be one (1) arbitrator.  If the parties cannot agree upon the identity of the arbitrator within fifteen (15) days after the Arbitration Date, the arbitrator shall be appointed in accordance with the Arbitration Rules.  The language to be used in the arbitral proceedings shall be English. All decisions of the arbitrator shall be in accordance with the terms of this Agreement. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. The party prevailing in the arbitration proceedings conducted pursuant to this Section shall be promptly reimbursed by the other party for all reasonable costs, including reasonable attorneys’ fees, incurred relating to such arbitration proceeding. Notwithstanding the foregoing, neither Party shall be prohibited from seeking injunctive or other equitable relief in any court of competent jurisdiction.ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ONLY ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. CUSTOMER UNDERSTANDS AND AGREES THAT BY ENTERING INTO THIS AGREEMENT OR USING ANY SERVICES, YOU AND UMBRA ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY AND TO PARTICIPATE IN A CLASS ACTION. Customer agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by Umbra. Umbra is permitted to disclose that Customer is one of its customers to any third-party at its sole discretion. Umbra may use the logo and service marks of Customer on its website and electronic and printed marketing materials to disclose that Customer is one of its customers.. Customer acknowledges that (i) it has read and understand this Agreement, (b) this Agreement has the same force and effect as a signed agreement, (c) Umbra requires that Customer be identified before issuing this license and (d) issuance of this license does not constitute general publication of the Services or Confidential Information.