Updated Nov 14, 2022
This End User License Agreement (“Agreement”) is a legal agreement between you (either an individual or an entity) (“Customer”) and Conduktor Inc., a Delaware corporation (“Conduktor”), regarding proprietary software made available by Conduktor (“Conduktor Software”). This Agreement applies to Enterprise Licenses of the Conduktor Software. BY SIGNING AN ORDER FORM, OR BY USING THE CONDUKTOR SOFTWARE, CUSTOMER EXPRESSLY ACCEPTS AND AGREES TO THE TERMS OF THIS AGREEMENT. IF YOU ARE AN INDIVIDUAL AGREEING TO THE TERMS OF THIS AGREEMENT ON BEHALF OF AN ENTITY, SUCH AS YOUR EMPLOYER, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY AND “CUSTOMER” SHALL REFER HEREIN TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SOFTWARE.
- License Terms. Subject to the terms of this Agreement, Conduktor grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable license during the Term (as defined in Section 9.1) to use the Conduktor Software solely for use by Named Users (as defined below) to support Customer’s internal business operations. Subject to the restrictions set forth in this Agreement, Customer may permit its third-party service providers to use the Conduktor Software to provide outsourced services to Customer, and Customer will be solely responsible for such service provider’s compliance with this Agreement. “Named User” means any unique licensed user of the Conduktor Software who is authorized by the Customer to use the Conduktor Software. Named Users with the same domain (i.e., from the same company/customer) should be under the same subscription.
- Additional Restrictions and Limitations. Customer shall not, and shall not permit or encourage any of Customer’s Named Users, or any employee, contractor, consultant, or third party to:
- sublicense, sell, distribute or pledge the Conduktor Software or any of the rights herein;
- use the Conduktor Software other than as expressly permitted by this Agreement, or use the Conduktor Software for third-party training, software-as-a-service, time-sharing or service bureau use;
- provide access to the Conduktor Software to anyone other than an Named User;
- use any third party software, including any open source software, in conjunction with the Conduktor Software, unless Customer ensures that such use does not cause the Conduktor Software to become subject to any third party license applicable to such third party software or require the public disclosure or distribution of the Conduktor Software or the licensing of the Conduktor Software for the purpose of making derivative works;
- modify, translate, decrypt, create derivative works based on, disassemble, decompile or reverse engineer any portions of the Conduktor Software, or otherwise attempt to gain access to the source code to such Conduktor Software (or the underlying ideas, algorithms, structure or organization of the object code in the Conduktor Software). The foregoing restriction is inapplicable to the extent prohibited by applicable law; provided that, in the event that Customer intends to disassemble, decompile or reverse engineer such Conduktor Software, Customer shall first provide Conduktor with written notice thereof.
- bypass or breach any security device or protection used by the Conduktor Software or access or use the Conduktor Software other than by a Named User through the use of valid access credentials;
- input, upload, transmit, or otherwise provide to or through the Conduktor Software any information or materials that are unlawful or injurious, or that contain, transmit, or activate any harmful code; or
- use the Conduktor Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property rights or other right of any person, or that violates any applicable law.
- Suspension of Access; Reservation of Rights. Conduktor reserves the right to modify or suspend Customer’s access to or use of the Conduktor Software in its sole discretion, without prior notice and without liability to Conduktor in the event: (a) Conduktor reasonably believes that Customer’s access to or use of the Conduktor Software may result in liability to Conduktor or adversely affect the integrity, functionality or usability of the Conduktor Software, including without limitation, interfering with the access to or use of the Conduktor Software by other users; (b) Customer is in breach of this Agreement, including without limitation, a failure to pay any amounts due under this Agreement; or (c) for scheduled maintenance. Conduktor shall not be responsible for any damages, liabilities or losses of Customer in connection with any suspension of the Conduktor Software that result from the foregoing. Conduktor reserves all rights not expressly granted in this Agreement. No rights are granted by implication.
- Number of Users. At the time of the initial purchase of the Conduktor Software, the Customer may subscribe for licenses for any number of Named Users. Following the initial purchase Customer may subscribe for additional licenses for new Named Users, which licenses will be subject to the terms of this Agreement. Any and all employees, contractors, and other end users of Customer may only use the Conduktor Software as Named Users of Customer. Customer is permitted to reassign up to ten percent (10%) of the total number of purchased licenses for Named Users to new Named Users each month. Reassignment requests should be sent by email to firstname.lastname@example.org.
- Number of Clusters. Where a product limits the number of Kafka clusters (“Clusters”), this limit shall be referenced on an order form. Creating multiple organisations to create multiple Clusters shall not be allowed.
- Number of Tests. Where a product limits the number of test scenarios that can be triggered manually inside the Conduktor Software or through an automated means (“Test”), this limit shall be referenced on an order form. Where a test suite results in multiple test scenarios, it is the scenarios that count towards this limit.
- Reseller Activities. Customer may acquire licenses to use the Conduktor Software for purposes of transferring such licenses to other end users, either directly or indirectly, through other business intermediaries by entering into a separate written agreement with Conduktor that sets forth the terms of such engagement.
- Delivery of Materials. The Conduktor Software, and any versions, updates or maintenance releases of any component thereof, will be delivered only through an electronic transfer.
- Support and Maintenance. All support requests should be sent by email to email@example.com, mentioning the company name, contact email, and a case description. The time taken to respond to a support request (“Target Initial Response Time”) for receipt of an initial reply to a reported Issue is within 48 business hours. The Target Initial Response Time shall be measured by the elapsed time between Conduktor’s receipt of a reported issue and the time Conduktor begins to address such issue by responding and initiating communication with Customer about the issue. The actual time required to fully resolve the issue, if full resolution occurs, maybe longer than the Target Initial Response Time. Customer understands and agrees that full resolution of an issue is not guaranteed and may not occur.
- Preview Releases. Conduktor may invite you to try our beta services or features under development (“Beta Services or Features”) at no charge. You may accept or decline any such invitation at your sole discretion. Beta Services or Features will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services or Features are for evaluation purposes only and not for production use, and are not considered Conduktor Software under this Agreement, are not supported, and may be subject to additional terms. Conduktor may discontinue Beta Services or Features at any time in Conduktor's sole discretion. Conduktor is undertaking no obligation to release a generally available version of Beta Service or Feature. We will have no liability for any harm or damage arising out of or in connection with a Beta Service or Feature.
USER AND PERFORMANCE DATA. Conduktor may from time to time use and process data about Customer’s use of the Conduktor Software and Third Party Software for the purposes of creating statistics and analytics data. Conduktor may use such data for its own business purposes, including to maintain and improve the Conduktor Software, Third Party Software and other services and to monitor and analyse its activities in connection with the performance of such services. To the extent the Customers inputs anu personal data into the cloud services and the processing is subject to the EU General Data Protection Regulation (2016/679, the “GDPR”), Conduktor and the Customer acknowledge that the Customer acts as a data controller and Conduktor is the data processor processing personal data together with its subprocessors on behalf of the Customer for the purpose of providing the services. All such processing of the Costomer’s personal data by Conduktor is subject to the data processing addendum found at https://www.conduktor.io/dpa.
OWNERSHIP. Customer acknowledges that Conduktor or its licensors retain all proprietary rights, title and interest, including all intellectual property rights, in and to the Conduktor Software and any changes, corrections, bug fixes, enhancements, updates and other modifications thereto (collectively, “Modifications”), and as between the parties all such rights shall vest in Conduktor. Customer acknowledges that the licenses granted in Section 1 do not include the right to prepare any Modifications of the Conduktor Software.
Customer shall pay Conduktor any fees or payments net 30 days from Conduktor’s invoice. Conduktor may charge Customer an additional 1.5% per month for all fees that are not paid on time.
Conduktor may increase annual recurring fees upon providing written notice at least sixty (60) days before the end of the then current Term.
Fees payable to Conduktor are exclusive of all applicable sales, use, value-added, goods and services, consumption, withholding, excise and any other similar taxes or government charges (“Taxes”). Customer shall pay Conduktor such applicable Taxes listed on the relevant invoice, which may be in addition to the total fees due and listed on an applicable order form.
Except as otherwise provided herein, all fees paid by Customer are non-refundable and no right of setoff exists.
FEEDBACK. Customer is under no duty to provide any suggestions, enhancement requests, or other feedback regarding the Conduktor Software (“Feedback”). If Customer chooses to offer Feedback to Conduktor, Customer hereby grants Conduktor a perpetual, irrevocable, non-exclusive, worldwide, fully-paid, sub-licensable, assignable license to incorporate into the Conduktor Software or otherwise use any Feedback Conduktor receives from Customer. Customer also irrevocably waives in favor of Conduktor any moral rights which Customer may have in such Feedback pursuant to applicable copyright law. Conduktor acknowledges that any Feedback is provided on an “as-is” basis with no warranties of any kind. Feedback shall constitute Confidential Information of Conduktor for purposes of Section 6.
- Nondisclosure and Limited Use. Each party shall retain in confidence the non-public information and know-how disclosed or made available by the other party pursuant to this Agreement which is either designated in writing as proprietary and/or confidential, if disclosed in writing, or if disclosed orally, is designated in writing (which may be via email) as confidential within thirty (30) days of the oral disclosure or should reasonably be understood to be confidential by the recipient (the “Confidential Information”). The Conduktor Software, Modifications, and the terms and conditions of this Agreement shall be Conduktor’s Confidential Information. Each party agrees to: (a) maintain the confidentiality of the other party’s Confidential Information; (b) refrain from using the other party’s Confidential Information except for the purpose of performing its obligations under this Agreement; and (c) not disclose such Confidential Information to any third party except to employees and subcontractors as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding written use and disclosure restrictions at least as protective as those set forth herein). Each party shall immediately notify the other party of any unauthorized disclosure or use of any Confidential Information and assist the other party in remedying such unauthorized use or disclosure by taking such steps as are reasonably requested by such other party. The foregoing obligations will not apply to Confidential Information of the other party which is: (i) already publicly known without breach of this Agreement; (ii) discovered or created by the receiving party without use of, or reference to, the Confidential Information of the disclosing party, as shown in records of the receiving party; (iii) otherwise known to the receiving party through no wrongful conduct of the receiving party, or (iv) required to be disclosed by law or court order; provided that the receiving party shall provide prompt notice thereof and reasonable assistance to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. Moreover, either party hereto may disclose any Confidential Information hereunder to such party’s agents, attorneys and other representatives (and only subject to confidentiality obligations at least as protective as those set forth herein) or any court of competent jurisdiction as reasonably required to resolve any dispute between the parties hereto.
- Remedies. Any breach or threatened breach of this Section may cause irreparable injury to the disclosing party and, in addition to any other remedies that may be available, in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the receiving party, without the necessity of proving actual damages or posting any bond, in addition to any other rights or remedies provided by law.
Conduktor shall, at its own expense, defend or at its option, settle, any claim or action brought against Customer by a third party to the extent it is based on a claim that the Conduktor Software, as may be updated, from time to time, by Conduktor and used in accordance with this Agreement, infringes any patent, copyright, or any trade secret of such third party. Furthermore, Conduktor will indemnify and hold Customer harmless from and against damages, costs, and fees reasonably incurred (including reasonable attorneys' fees) that are attributable exclusively to such claim or action and which are assessed against Customer in a final judgment. Conduktor’s obligations to defend, settle, or indemnify Customer are subject to (a) Customer promptly notifying Conduktor in writing of such claim; (b) Conduktor having the exclusive right to control such defense and/or settlement; and (c) Customer providing reasonable assistance (at Conduktor's expense) in the defense thereof. Customer shall not settle any claim, action or proceeding without Conduktor’s prior written approval.
CONDUKTOR SHALL NOT DEFEND, INDEMNIFY, OR HOLD CUSTOMER HARMLESS FOR ANY CLAIM IF: (A) CUSTOMER MADE MODIFICATIONS TO THE CONDUKTOR SOFTWARE OR PORTIONS THEREOF; (B) SUCH CLAIM WOULD HAVE BEEN AVOIDED BY USE OF THE THEN CURRENT RELEASE OF THE CONDUKTOR SOFTWARE MADE AVAILABLE TO CUSTOMER; (C) CUSTOMER CONTINUED ITS ALLEGEDLY INFRINGING ACTIVITY AFTER BEING PROVIDED WITH MODIFICATIONS THAT WOULD HAVE AVOIDED THE ALLEGED INFRINGEMENT; OR (D) SUCH CLAIM IS BASED ON CUSTOMER’S OUTPUT.
IF CONDUKTOR DEFENDS OR SETTLES AN INFRINGEMENT CLAIM ARISING UNDER SECTION 7.1 ABOVE, CONDUKTOR’S LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY (IN ADDITION TO THE “INDEMNITY”) SHALL BE FOR CONDUKTOR AT ITS OWN EXPENSE, TO EITHER (A) REPAIR, REPLACE OR MODIFY THE AFFECTED CONDUKTOR SOFTWARE OR (B) ALTERNATIVELY, PROCURE FOR CUSTOMER THE RIGHT TO CONTINUE TO USE THE AFFECTED CONDUKTOR SOFTWARE. IF THE FOREGOING REMEDIES ARE NOT COMMERCIALLY FEASIBLE (IN THE REASONABLE OPINION OF CONDUKTOR), CONDUKTOR MAY CANCEL THE APPLICABLE ORDER AND, AS APPLICABLE, FOR THE AFFECTED CONDUKTOR SOFTWARE, REFUND THE LICENSE FEES PAID TO CONDUKTOR BY CUSTOMER FOR THE AFFECTED CONDUKTOR SOFTWARE.
DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
- Disclaimer of Any Warranties. CONDUKTOR MAKES NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE CONDUKTOR SOFTWARE OR ANY OTHER MATERIALS PROVIDED HEREUNDER. CONDUKTOR SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OR TRADE, AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. THE CONDUKTOR SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
- Limitation of Liability**.** IN NO EVENT SHALL CONDUKTOR’S LIABILITY ARISING UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. CONDUKTOR WILL NOT BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, BUSINESS, CONTRACTS, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY CLAIM OR DEMAND BY ANY OTHER PARTY, HOWEVER CAUSED AND (TO THE FULLEST EXTENT PERMITTED BY LAW) UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) EVEN IF CONDUKTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ACKNOWLEDGES THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
TERM AND TERMINATION
- Term. Unless terminated earlier in accordance with Section 9.2 below, this Agreement and the license granted hereunder will be effective as of the date Customer purchases the Conduktor Software (the “Effective Date”) and shall continue for a term of one year from the Effective Date (together with each renewal term, the “Term”). Thereafter, the license shall automatically renew for successive one-year terms at the then current list price (except as otherwise provided for in a separate written agreement) unless Customer notifies Conduktor in writing, such notice to be sent by email to firstname.lastname@example.org, at least sixty (60) days prior to the end of the current term of Customer’s intention to terminate the license.
- Termination. The license granted hereunder shall immediately terminate if Customer breaches Section 1 of this Agreement, regardless of whether Conduktor notifies Customer of such termination. In addition, Conduktor shall have the right to terminate this Agreement and the license granted herein upon written notice in the event the Customer fails to perform or observe any material term or condition of this Agreement and such default has not been cured no later than ten (10) days after written notice of such default to the Customer. Conduktor may also terminate this Agreement immediately if the Customer: (a) terminates or suspends its business; (b) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute; (c) becomes insolvent or subject to direct control by a trustee, receiver or similar authority; or (d) has wound up or liquidated, voluntarily or otherwise.
- Effect of Termination. This Section 9.3 and Sections 3, 6, 7 (solely with respect to claims arising during the Term), 8 and 10 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement. All of Customer’s rights in the Conduktor Software will terminate immediately upon termination of this Agreement. Customer shall not be entitled to any refund of fees paid. No later than five (5) days after termination of this Agreement, Customer shall return to Conduktor or, upon Conduktor’s request, destroy or render inaccessible, at Customer’s sole expense, all Confidential Information of Conduktor and materials containing any Confidential Information of Conduktor, and discontinue use of and uninstall the Conduktor Software, including all copies thereof. Nothing contained herein shall limit any other remedies that Conduktor may have for the default of Customer under this Agreement nor relieve Customer of any of its obligations incurred prior to such termination.
- Publicity. Conduktor may identify Customer as a user of the Conduktor Software and may use Customer’s name, logo, and other trademarks in Conduktor’s customer list, press releases, blog posts, advertisements, and website (and all use thereof and goodwill arising therefrom shall inure to the sole and exclusive benefit of Customer). Customer may deny Conduktor Inc. this right at any time by submitting a written request via email to email@example.com, requesting to be excluded from Conduktor Software promotional material. Requests made after Purchasing may take thirty (30) calendar days to process. Otherwise, neither party may use the name, logo, or other trademarks of the other party for any purpose without the other party’s prior written approval.
- Force Majeure. In no event shall Conduktor be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Conduktor’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
- Assignment. Customer shall not assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, to any third party without Conduktor’s prior written consent. Any purported transfer, assignment or delegation without such prior written consent will be null and void and of no force or effect. Conduktor shall have the right to assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Subject to this Section, this Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns.
- Entire Agreement; Modification; Waiver. This Agreement represents the entire agreement between the parties, and supersedes all prior agreements and understandings, written or oral, with respect to the matters covered by this Agreement, and is not intended to confer upon any third party any rights or remedies hereunder. Customer acknowledges that it has not entered in this Agreement based on any representations other than those contained herein. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing and signed by both parties. The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default.
- Third Party Software, Services, and Webites.
- Conduktor makes available certain third party open source software (“Third Party Software”). The Third Party Software shall be subject to the applicable open source license(s) and not this Agreement, and is provided by Conduktor at no charge. To the extent the terms of open source licenses applicable to Third Party Software prohibit any of the restrictions in this Agreement, such restrictions will not apply to such Third Party Software. To the extent the terms of open source licenses applicable to Third Party Software require Conduktor to make an offer to provide source code or related information in connection with the Third Party Software, such offer is made.
- The Conduktor Software may contain links to other websites, services or software provided by third parties (“Third-Party Content”). Links from the Conduktor Software to Third-Party Content are provided for Customer convenience only and are not investigated, monitored or checked for accuracy, appropriateness, or completeness by Conduktor, and Conduktor is not responsible for any Third-Party Content accessed through the Conduktor Software, including without limitation the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third-Party Content. Inclusion of, linking to, or permitting the use or installation of any Third-Party Content does not imply approval or endorsement thereof by Conduktor. If Customer decides to access or install any Third-Party Content, Customer does so at its own risk. Customer should review the applicable terms and policies, including privacy and data gathering practices, of any Third-Party Content that you use or install. Conduktor reserves the right to change, modify or delete links to Third-Party Content without notice.
- Governing Law. This Agreement shall in all respects be governed by the laws of the State of New York without reference to its principles of conflicts of laws. The parties hereby agree that all disputes arising out of this Agreement shall be subject to the exclusive jurisdiction of and venue in the federal and state courts within the City and County of New York, New York. Customer hereby consents to the personal and exclusive jurisdiction and venue of these courts. The parties hereby disclaim and exclude the application hereto of the United Nations Convention on Contracts for the International Sale of Goods.
- Arbitration. Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you can seek relief from Conduktor. For any dispute with Conduktor, you agree to first contact us at firstname.lastname@example.org and attempt to resolve the dispute with us informally. In the unlikely event that Conduktor has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in New York, New York, unless you and Conduktor agree otherwise. If you are using the Conduktor Software for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. If you are an individual using the Conduktor Software for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Conduktor from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights or other proprietary rights.
- Class Action/Jury Trial Waiver. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE CONDUKTOR SOFTWARE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND CONDUKTOR ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
- Severability. If any provision of this Agreement is held invalid or unenforceable under applicable law by a court of competent jurisdiction, it shall be replaced with the valid provision that most closely reflects the intent of the parties and the remaining provisions of the Agreement will remain in full force and effect.
- Relationship of the Parties. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
- Notices. All notices permitted or required under this Agreement shall be in writing and shall be deemed to have been given when delivered in person (including by overnight courier), or three (3) business days after being mailed by first class, registered or certified mail, postage prepaid, to the address of the party specified in this Agreement or such other address as either party may specify in writing, or when sent if by email. It is your responsibility to keep your email address(es) current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email. Notices made by you to Conduktor should be sent via email to email@example.com.
- U.S. Government Restricted Rights. If Conduktor Software is being licensed by the U.S. Government, the Conduktor Software is deemed to be “commercial computer software” and “commercial computer documentation” developed exclusively at private expense, and (a) if acquired by or on behalf of a civilian agency, shall be subject solely to the terms of this computer software license as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (b) if acquired by or on behalf of units of the Department of Defense (“DOD”) shall be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 227.7202-2, DOD FAR Supplement and its successors.
- Export Law Assurances. Customer understands that the Conduktor Software is subject to export control laws and regulations. Customer may not download or otherwise export or re-export the Conduktor Software or any underlying information or technology except in full compliance with all applicable laws and regulations, in particular, but without limitation, United States export control laws. None of the Conduktor Software or any underlying information or technology may be downloaded or otherwise exported or re- exported: (a) into (or to a national or resident of) any country to which the United States has embargoed goods; or (b) to anyone on the U.S. Treasury Department’s list of specially designated nationals or the U.S. Commerce Department’s list of prohibited countries or debarred or denied persons or entities. Customer hereby agrees to the foregoing and represents and warrants that customer is not located in, under control of, or a national or resident of any such country or on any such list.
- Construction. The titles and section headings used in this Agreement are for ease of reference only and shall not be used in the interpretation or construction of this Agreement. No rule of construction resolving any ambiguity in favor of the non-drafting party shall be applied hereto. The word “including”, when used herein, is illustrative rather than exclusive and means “including, without limitation.”
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