THIS SOFTWARE LICENSE AGREEMENT (THE “AGREEMENT”) IS ENTERED INTO EFFECTIVE AS OF THE DATE ON WHICH YOU ACCEPT THIS AGREEMENT (THE “EFFECTIVE DATE“), BY AND BETWEEN NYOTRON INFORMATION SECURITY LTD. (INCLUDING ITS SUBSIDIARIES, “NYOTRON”, “US”, “WE” OR LICENSOR”), AND AND YOU AND/OR THE ENTITY YOU REPRESENT (“YOU”, “YOUR” OR “LICENSEE”).
BY USING THE INGRAM MICRO CLOUD MARKETPLACE SITE, INCLUDING ORDERING, RESELLING, OR USING ANY OF THE SERVICES, YOU ACKNOWLEDGE AND AGREE TO THIS AGREEMENT, AND YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BE LEGALLY BOUND BY THIS AGREEMENT AND TO LEGALLY BIND YOUR COMPANY TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, NEITHER YOU NOR YOUR COMPANY MAY ORDER, DOWNLOAD, INSTALL OR USING ANY PORTION OF THE SOFTWARE.
TO THE EXTENT THERE IS ANY CONFLICT BETWEEN THIS AGREEMENT AND THE AGREEMENT ENTERED BETWEEN YOU AND AN INGRAM MICRO RESELLER, INCLUDING ANY PURCHASE ORDER (“PARTNER ORDER”), THEN, AS BETWEEN YOU AND NYOTRON, THIS AGREEMENT SHALL PREVAIL. ANY RIGHTS GRANTED TO YOU IN SUCH PARTNER ORDER WHICH ARE NOT CONTAINED IN THIS AGREEMENT, APPLY ONLY IN CONNECTION WITH THE PARTNER. IN THAT CASE, YOU MUST SEEK REDRESS OR REALIZATION OR ENFORCEMENT OF SUCH RIGHTS SOLELY WITH THE PARTNER AND NOT NYOTRON.
- Definitions. For purposes of this Agreement and any exhibits attached hereto, the following capitalized terms shall have the following meaning:
- License Grant. Subject to the terms and conditions of this Agreement, the applicable Order, and upon receipt of payment by Licensor (if purchased directly from Nyotron), during the Term, Licensor grants to Licensee and Licensee accepts from Licensor a limited, non-exclusive, non-transferable, nonsublicensable license to use the Software for Licensee’s internal use purposes provided that the Software may be installed and operated on up to the Maximum Number of Software Agent set forth in an applicable Order (“License”). The License is further subject to any restrictions or usage terms specified in the Order and/or on the applicable price list and Software packaging included as part of the Documentation.
Licensee hereby acknowledges and agrees that the Software may contain a number of methods to verify and support the Software use. These methods may include technological features that monitor Software use, prevent unauthorized use and provide Software deployment verification.
All Software shall be deemed accepted upon its delivery to Licensee.
- Reservation of Rights; Use Restrictions. Other than the rights explicitly granted in this Agreement, Licensee shall have no other rights, express or implied, in the Software. Without limiting the generality of the foregoing, Licensee agrees and undertakes not to: (i) sell, lease, sublicense or distribute the Software, or any part thereof, or otherwise transfer the Software or allow any third party to use the Software in any manner (except to the extent that an applicable Order provides otherwise); (ii) reverse engineer, decompile, disassemble or otherwise reduce to human-perceivable form the Software’s source code; (iii) modify, revise, enhance or alter the Software; (iv) copy or allow copies of the Software to be made; (v) use any backup or archival copies of the Software, or any part thereof, or allow any third party to use such copies, for any purpose other than to replace an original copy in the event of the destruction of the Software components, if the Software becomes defective; (vi) place the Software onto a server so that it is accessible via a public network; (vii) use the Software to provide third parties with managed services or any other services whether or not in return for remuneration of any kind; (viii) remove, deface, obscure or otherwise modify any copyright or other proprietary notices included on or in the Software; (ix) develop methods to enable unauthorized parties to use the Software, or to develop any other software containing any of the concepts and ideas contained in the Software, (x) work around any technical limitations in the Software, or use any tool to enable features or functionalities that are otherwise disabled in the Software, or (xi) use the Software for any unlawful purpose, or one that could associate Licensor with any improper or inappropriate purpose (including infringement or misappropriation of any third party intellectual property, privacy, or publicity right), (xii) conduct any comparisons or other benchmarking activities with the Software, either alone or in connection with any other software or hardware without the prior written consent of Nyotron, (xiii) publish reviews of the Software without the prior written consent of Nyotron; and/or (xiv) represent that it possesses any proprietary interest in the Software.
- Open Source Software. Portions of the Software include third party open source software modules that are subject to third party terms and conditions (“Third Party Terms”). A list of any third party open source software and related Third Party Terms is available at our website at http://www.nyotron.com/ and/or may be found in a “Read Me” file or “About” file in the Software. If there is a conflict between any Third Party Terms and the terms of this Agreement, then the Third Party Terms shall prevail, but solely in connection with the related third party open source software. Notwithstanding anything in this Agreement to the contrary, Licensor makes no warranty or indemnity hereunder with respect to any third party open source software.
- Usage Audit. During the Term and for one year thereafter, Licensor may request (not more than once per every 6 months), that Licensee furnish it with a report signed by an authorized representative of Licensee verifying Licensee’s usage of the Software in accordance with the terms of this Agreement. Without derogating from the foregoing, during the Term and for one year thereafter, Licensor shall be entitled to audit Licensee’s deployment and usage of the Software at Licensee’s facilities in order to verify proper usage in accordance with the terms herein. Such audits shall be scheduled a reasonable time in advance during Licensee’s normal business hours. If Licensee’s use of the Software is found to be greater than the applicable License terms then Licensee will be invoiced for the additional usage and the unpaid fees shall be payable in accordance with the terms of this Agreement. Additionally, if the unpaid fees exceed five percent (5%) of the fees paid for the applicable Software, then Licensee shall also pay Licensor’s reasonable costs of conducting the audit. This Section shall not limit or restrict Licensor’s rights or remedies that are otherwise set forth in this Agreement or available at law or in equity.
- Title & Ownership. LICENSOR DOES NOT AND SHALL NOT SELL OR TRANSFER TITLE IN THE SOFTWARE, OR ANY PART THEREOF, TO LICENSEE. The Software and/or any copies thereof, including without limitation any derivative works made (regardless of whether such derivative works were made and/or developed pursuant to the request and/or specifications of Licensee, and irrespective of any support and/or assistance Licensor may, will or had received from Licensee, or any third party on its behalf, with respect thereto), as well as any Updates thereto, if provided to Licensee pursuant to this Agreement, shall remain Licensor’s sole and exclusive property. All Intellectual Property Rights evidenced by or embodied in and/or attached/connected/related to: (i) the Software, or part thereof, and (ii) all the parameters and framework of the content, reports, information or results that Licensee may obtain through the use of the Software such as security breach detection and forensic data which may include: event ID, operation Software stack records and internal flags (collectively: “Reports”) are and shall be owned solely and exclusively by Licensor. Unless Reports are separately referred to herein, all references in this Agreement to the Software shall include the Reports. Nothing in this Agreement shall constitute a waiver of Licensor’s Intellectual Property Rights under any law, or be in any way construed or interpreted as such. It is further agreed that to the extent Licensee provides Licensor suggestions, comments or feedback (whether orally or in writing) with respect to the Software (the “Feedback”), Licensee acknowledges that any and all rights, including Intellectual Property Rights in such Feedback shall belong exclusively to Licensor and that such shall be considered Licensor’s Confidential Information and Licensee hereby irrevocably transfers and assigns to Licensor all Intellectual Property Rights in such Feedback and waives any and all moral rights that Licensee may have in respect thereto. It is further understood that use of Feedback, if any, may be made by Licensor at its sole discretion, and that Licensor in no way shall be obliged to make use of any kind of the Feedback or part thereof.
- Warranties. Licensor warrants that, to its knowledge, it has the right to grant Licensee with the License granted. Licensor’s sole liability for any breach of this warranty or any other warranty under this Agreement shall be, at Licensor’s sole discretion: (i) to replace or repair the Software or the applicable portion thereof; or (ii) to terminate this Agreement provided that, (a) if Licensee has purchased a perpetual license Licensor will refund the price paid for the license to the Software based on a pro rata straight line three (3) year depreciation basis, and (b) if Licensee has purchased subscription license, Licensor will reimburse to Licensee any amount pre-paid by Licensee for the remaining unused period of the license.
Licensee hereby represents and warrants that (i) it has the right, power and authority to enter into this Agreement; and (ii) it owns or has the necessary rights and permissions to use the Software.
- Disclaimer of Warranty.
- Limitation of Liability. IN NO EVENT SHALL LICENSOR’S AGGREGATE LIABILITY FOR ANY AND ALL DAMAGES AND LOSSES THAT ARISE UNDER, ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THAT RESULT FROM LICENSEE’S USE OF OR INABILITY TO USE THE SOFTWARE, EXCEED THE AMOUNT PAID BY LICENSEE TO LICENSOR HEREUNDER DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT. IN NO EVENT WILL LICENSOR BE LIABLE FOR LOST PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF BUSINESS, LOSS OF REPUTATION, LOSS OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY OTHER SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, THAT ARISES UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR THAT RESULTS FROM THE USE OF, OR THE INABILITY TO USE, THE SOFTWARE; ALL OF THE ABOVE, WHETHER OR NOT LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Term and Termination.
- Indemnification. Licensor shall defend or settle at its expense any action, claim or proceeding, brought against Licensee to the extent based upon a third party claim that the Software, when used as permitted under this Agreement, infringes any third party’s copyrights or trade secret Licensor agrees to pay Licensee all liabilities, damages, losses costs, and expenses as incurred, including without limitation reasonable attorney fees finally awarded against Licensee or paid in a settlement and arising out of such third party claims. Licensor’s indemnity obligation shall not extend to claims based on: (i) an unauthorized modification or use of the Software made by any third party other than Licensor, where the Software, without such modification or unauthorized use, would not be infringing; (ii) the combination of non infringing items with any items not supplied by Licensor, where the Software, without such combination, would not be infringing; (iii) the use by Licensee of any version which is not the latest available version of the Software to the extent delivered to Licensee; or (iv) any infringements of any open source component within the Software. As a condition to the defense set forth above, Licensee shall give Licensor prompt notice of any such claim made against it, and grant Licensor sole control of the defense of any such claim, suit or proceeding, including appeals, negotiations and any settlement or compromise thereof. If the Software or part thereof becomes, or in Licensor’s opinion may become, subject to any claim of infringement of any duly issued patent or copyright or asserted trade secret right and its use is thereby enjoined, Licensor’s sole liability shall be, at Licensor’s option, to either: (a) procure for Licensee the right to continue using the Software; (b) replace or modify the Software, so that it is non-infringing; or (c) terminate this Agreement if Licensee has purchased a perpetual license Licensor will refund the License Fees paid for the license to the Software based on a pro rata straight line three (3) year depreciation basis, and if Licensee has purchased a subscription license, Licensor will reimburse to Licensee any amount pre-paid by Licensee for the remaining unused period of the License. This Section states Licensor’s entire liability, and Licensee’s exclusive remedy, for claims or alleged or actual infringement.
- Government Use. If Licensee is part of an agency, department, or other entity of the United States Government (“Government“), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software may restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies and the Defense Federal Acquisition Regulation Supplement as applied to military agencies. The Software is a “commercial item”, “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR Part 12.212, and DFARS Part 227.7202 and 252.7014(a) and their successors. In accordance with such provisions, any use of the Software by the Government shall be governed solely by the terms of this Agreement.
- Export Laws. Licensee agrees to comply fully with all U.S., Israeli, and all applicable export laws and regulations to ensure that neither the Software nor any technical data related thereto are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations. For clarity, and without derogating from Section 12(Term and Termination) below, in case of any change of any applicable law, policy or regulation, which might affect Licensor’s business, Licensor will have the right to terminate this Agreement and the license granted hereunder and the Licensee shall have no claims regarding such termination.
- General Terms.
1.1. “Documentation” means the user’s guides and technical manuals of the Software, and all other written and or electronic materials relating thereto, provided by Licensor to Licensee under this Agreement.
1.2. “End User Order” means a purchase order delivered by Licensee which contains, inter alia, payment terms, Maximum Number of Software Agents, type of license (subscription or perpetual), term of the license and other restrictions and conditions. The End User Order incorporates by reference all terms and conditions specified on Licensor’s quotation. End User Order will not be binding on Licensor’s until approved and accepted by Licensor in writing. Once an End User Order is approved in writing by Licensor it shall constitute an integral part of this Agreement. Licensor hereby rejects any term, provision or condition in End User Order or other communication which conflict with, or purport to add to or modify this Agreement and/or Licensor’s quotation.
1.3. “Intellectual Property Rights” means all intangible legal rights, titles and interests evidenced by or embodied in all: (i) inventions (regardless of patentability and whether or not reduced to practice), improvements thereto, and patents, patent applications, and patent disclosures, together with all reissuances, continuations, continuations in part, revisions, extensions and reexaminations thereof; (ii) trademarks, service marks, trade dress, logos, trade names and corporate names, together with translations, adaptations, derivations, and combinations thereof, including goodwill associated therewith, and applications, registrations, and renewals in connection therewith; (iii) any work of authorship, regardless of copyrightability, copyrightable works, copyrights (including droit morale) and applications, registrations, and renewals in connection therewith; (iv) mask works and applications, registrations and renewals in connection therewith; (v) trade secrets and Confidential Information; and (vi) other proprietary rights and any other similar rights, in each case on a worldwide basis, and copies and tangible embodiments thereof, in whatever form or medium.
1.4. “Maximum Number of Software Agents” means the maximum number of installations of the Software, each on a single computer as set forth in an applicable End User Order that may be installed or used.
1.5. “New Release” means a new version of the Software that includes or adds new functionality or adds substantially new features to the Software, including any major enhancements, as designated by a progressing of the version number left of the decimal point following the version initially delivered hereunder.
1.6. “Order” means either Partner Order or End User Order, as the case may be.
1.7. “Software” means the object code version of Licensor’s solution as further detailed in an applicable End Usere Order, including Documentation and Updates (to the extent delivered).
1.8. “Updates” means, with respect to any element of the Software, a new version of such element that includes bug fixes and minor enhancements to the Software, as designated by a progressing of the version number right of the decimal point following the version initially delivered hereunder, and which is made available at no additional cost by Licensor to its customers generally. For clarity, the term Update does not include New Releases of the Software which are sold separately or include significant new functionality.
7.1. Subject to Section 7.2 below, the License granted hereunder is subject to the full payment of the applicable license fees as set forth in the Partner Order between Licensee and the respective Partner.
7.2. If Licensee has purchased the License directly from Licensor Sections 7.2 and 7.3 shall apply.Unless otherwise specified in the End User Order, all fees specified in the End User Order shall be due and payable within seven (7) days of the date of invoice. Payment received by Licensor after the due date shall be subject to a late fee equal to one and one-half percent (1.5%) per month or, if less, the maximum amount allowed by applicable law. All amounts payable hereunder shall not be subject to any set-off or deduction.
7.3. Taxes. Licensee is solely responsible for payment of any taxes (including, without limitation, sales or use taxes, Value Added Taxes, employee-related taxes, intangible taxes, and property taxes, and only excluding taxes related to Licensor’s income) resulting from the use of the Software. To the extent that Licensor shall be required to pay any such taxes then such taxes shall be billed to and paid by Licensee. Licensee agrees to hold harmless Licensor from all claims and liabilities arising from Licensee’s failure to report or pay any such taxes. If any such taxes are required to be withheld, Licensee shall promptly provide to the Licensor from which such amounts were withheld a written confirmation of the amount so withheld and if necessary also a withholding approval from the applicable tax authorities stating the amount that withheld. The parties shall cooperate to qualify for the benefits of any applicable treaty for the avoidance of double taxation and provide to each other relevant documentation for same.
9.1. EXCEPT AS SET FORTH IN SECTION 8, THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
9.2. LICENSOR DOES NOT WARRANT THAT (i) THE SOFTWARE WILL OPERATE ERROR-FREE; (ii) LICENSOR WILL CORRECT ANY ERRORS IN THE SOFTWARE; AND/OR (iii) THE SOFTWARE WILL DETECT AND/OR CORRECTLY IDENTIFY, DISINFECT ALL THREATS, APPLICATIONS OR OTHER COMPONENTS, OR PREVENT EVERY UNAUTHORIZED EXFILTRATION OF DATA.
9.3. LICENSOR DOES NOT PROVIDE A WARRANTY AGAINST, AND LICENSEE AGREES THAT LICENSOR SHALL NOT BE HELD RESPONSIBLE FOR, ANY CONSEQUENCES TO LICENSEE OR ANY THIRD PARTY THAT MAY RESULT FROM TECHNICAL PROBLEMS.
9.4. Applicable law may not allow the exclusion of certain warranties, so to that extent such exclusions may not apply.
11.1. Confidential Information. Each party (the “Disclosing Party”) may from time to time during the Term, disclose to the other party (the “Receiving Party”) certain information regarding the Disclosing Party’s business, including technical, marketing, financial, employee, planning and other confidential or proprietary information (“Confidential Information”). The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend. The Disclosing Party will identify all Confidential Information disclosed orally as confidential at the time of disclosure. Regardless of whether so marked or identified, however, any information that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party, will be considered Confidential Information of the Disclosing Party. For clarity, any information related to the Software shall be deemed as Licensor’s Confidential Information.
11.2. Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder; and in any event the Receiving Party shall assume full responsibility for any breach of this Agreement caused by any such employees or contractors. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
11.3. Exceptions. The Receiving Party’s obligations under this Section 12 with respect to any Confidential Information of the Disclosing Party shall not apply to and/or shall terminate if and when the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order or a court of similar judicial or administrative body; provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
12.1. Term. Unless terminated earlier in accordance with the terms of this Agreement, this Agreement and the License granted herein is effective for the duration of the term set forth in an applicable Order (“Term“).
12.2. Termination for Breach. Either party may terminate this Agreement at any time by giving written notice to the other party if the other party is in breach or default of any material provision of this Agreement, and the breaching party fails to cure the breach or default, within 30 days after being given written notice, specifying details of the breach or default and requiring the same to be remedied.
12.3. Termination in the Event of Default. Either party may terminate this Agreement immediately, in the event the other party: (i) is judged bankrupt or insolvent; (ii) makes a general assignment for the benefit of its creditors; (iii) a trustee or receiver is appointed for such party or for any of its property; or (iv) any petition by or on behalf of such party is filed under any bankruptcy or similar laws.
12.4. Consequences of Termination/Expiration. Upon the expiration of the Term or termination of this Agreement pursuant to Section 12.2 or 12.3 above, Licensee will: (i) immediately cease use of the Software; (ii) uninstalled or otherwise destroy all copies of the Software in its possession, which are fixed or resident in the memory or hard disks of its Software Agents; (iii) return to Licensor any and all Confidential Information then in its possession; and (iv) certify in writing to Licensor that all copies and partial copies of the Software and related Documentation have been either returned to Licensor or otherwise erased or destroyed and deleted from any Software Agents, including computer libraries or storage devices and are no longer in use by Licensee. Sections 3, 4, 5, 6, 8, 10, 10, 11, 13.4 14-16 shall survive the termination of this Agreement.
16.1. Governing Law. You agree to submit to the exclusive jurisdiction and venue of the state and/or federal courts of Santa Clara County, California if you are headquartered in the U.S. or to the exclusive jurisdiction and venue of the courts of Tel Aviv, Israel, if you are headquartered in any other geography with respect to any suit arising out of or relating to this Agreement.
16.2. Independent Contractor. Licensor undertakes the furnishing of the License and performance of its obligations under this Agreement as an independent contractor. There shall be no employer-employee relationship between Licensor’s employees and Licensee, and Licensee’s employees and Licensor.
16.3. Waiver. No waiver of rights arising under this Agreement shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No failure or delay by either party in exercising any right, power or remedy under this Agreement shall operate as a waiver of any such right, power or remedy and/or prejudice any rights of such party.
16.4. No Third-Party Beneficiaries. This Agreement is intended solely for the benefit of the parties. In no event will any third party have any rights in relation to this Agreement or any right to enforce the terms hereof.
16.5. Force Majeure. Licensor is excused for any delays, losses or damages due to causes beyond its control, including, without limitation, fire, explosion, power irregularities or surges, acts of God, earthquakes, rains, floods, lightning, labor unrest, strikes, strife or any other cause that was not reasonably foreseeable on the date of signing of this Agreement.
16.6. Subcontracting and Assignment. Licensee shall not assign and/or subcontract any of its rights and obligations under this Agreement, except with Licensor’s prior written consent. Licensor may assign any of its rights and/or obligations hereunder at Licensor’s sole discretion provided that such Licensor’s assignee agrees to be subject to the terms of this Agreement.
16.7. Severability. If any provision under this Agreement is determined by a court to be unenforceable, that provision will be deemed to be modified to the extent necessary to allow it to be enforced to the extent permitted by law, or if it cannot be modified, the provision will be severed and deleted, and the remainder of the Agreement will continue in effect.
16.8. Entire Agreement. The parties have read this Agreement, and agree to be bound by its terms, and further agree that it constitutes the complete and entire agreement of the parties and supersedes all previous communications between them, oral or written, relating to the subject matter hereof. No representations or statements of any kind made by either party that are not expressly stated herein shall be binding on such party. Licensor hereby rejects any term, provision or condition in Licensee’s purchase order or other communication which conflicts with, or purports to add to or modify this Agreement and/or Licensor’s quotation form and any such term, provision or condition shall be deemed stricken and shall not be binding upon Licensor unless and until an authorized officer of Licensor expressly accepts such term, provision or condition in writing. In case of conflict between this Agreement and the End User Order, this Agreement shall govern.