OnePort Flash Transceiver Programmer End User License Agreement
APPROVED NETWORKS’S OnePort FLASH TRANSCIEVER PROGRAMMER (HEREINAFTER, THE “TOOL”) IS A HARDWARE COMPONENT THAT COMES PRE-PROGRAMMED WITH SOFTWARE (HEREINAFTER, “SOFTWARE”) AND THAT PERMITS AN AUTHORIZED USER TO PROGRAM A OnePort OPTICAL TRANSCIEVER TO CONNECT TO COMMUNICATIONS EQUIPMENT SPECIFIED BY LICENSEE. THE TOOL IS UNSUITABLE FOR ALL OTHER USES, AND MUST NOT BE USED TO PROGRAM ANY TRANSCIEVER NOT MANUFACTURED BY APPROVED NETWORKS OR ANY APPROVED NETWORKS TRANSCIEVER OTHER THAN A OnePort OPTICAL TRANSCIEVER. AFTER PURCHASE FROM APPROVED NETWORKS, THE HARDWARE COMPONENT BECOMES THE LEGAL PROPERTY OF THE LICENSEE, BUT THE SOFTWARE REMAINS APPROVED NETWORKS’S LEGAL PROPERTY AND IS ONLY LICENSED TO THE LICENSEE ON THE TERMS AND CONDITIONS HEREIN.
TO OPERATE THIS TOOL FROM A COMPUTER, THE HARDWARE COMPONENT MUST BE CONNECTED TO THE COMPUTER, THE COMPUTER MUST BE CONNECTED TO THE INTERNET, AND A VALID LICENSE KEY MUST BE INPUT INTO THE COMPUTER TO INSTALL COMPONENTS OF THE SOFTWARE ON THE COMPUTER. FAILURE TO TAKE ANY OF THESE ACTIONS WILL PREVENT THE TOOL FROM BEING OPERATED FROM THE COMPUTER.
TO PROGRAM A OnePort OPTICAL TRANSCIEVER, THE TRANSCIEVER MUST BE CONNECTED TO THE HARDWARE COMPONENT, THE TOOL MUST BE OPERABLE FROM A COMPUTER, AND THE COMPUTER MUST BE CONNECTED TO THE INTERNET. TO PROGRAM THE TRANSCIEVER, THE USER MUST INPUT VALID USER CREDENTIALS AND VALID TRANSCIEVER CREDENTIALS INTO THE COMPUTER. FAILURE TO INPUT VALID USER CREDENTIALS WILL PREVENT THE USER FROM OPERATING THE TOOL, AND FAILURE TO INPUT VALID TRANSCIEVER CREDENTIALS WILL PREVENT THE TOOL FROM PROGRAMMING THE TRANSCIEVER.
APPROVED NETWORKS, INC. (“APPROVED NETWORKS”) IS WILLING TO GRANT LICENSEE THE LICENSE DESCRIBED HEREIN SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS LICENSE AGREEMENT AND ALL ORDER DOCUMENTS. PLEASE READ THE TERMS CAREFULLY BEFORE CLICKING ON THE "I AGREE" BUTTON, AS CLICKING ON THIS BUTTON WILL INDICATE LICENSEE’S ASSENT TO THEM. IF LICENSEE DO NOT AGREE TO THESE TERMS, THEN CLICK ON THE "I DISAGREE" BUTTON AND PROMPTLY EXIT THIS SOFTWARE, AND RETURN THE PRODUCT SOLD AND LICENSED TO LICENSEE BY APPROVED NETWORKS, AND DESTROY ANY COPIES LICENSEE HAVE MADE OF THE SOFTWARE. THE EFFECTIVE DATE OF THIS AGREEMENT SHALL COMMENCE ONCE THE “I AGREE” BUTTON IS CLICKED.
1.1. “Medium” means the medium by which the Software is provided to the Licensee. Examples include DVD, CD, flash drive, hard disk, computer appliance pre-installed with the Software, and download from the Internet.
1.2. “Documentation” means those visually-readable materials developed by or for APPROVED NETWORKS for use in connection with the Tool and customarily furnished by APPROVED NETWORKS to its Licensees of the Software. Documentation includes, to the extent applicable to the License, user and programming manuals, programmer notes, flow charts, schematics, illustrations, logic diagrams, descriptions of data flows, data structures, operating instructions, input information and format and technical and functional specifications but does not include the source code for the Software.
1.3. “License Key” means a file generated by APPROVED NETWORKS that, when applied to the Tool, identifies the Licensee to the Software, activates the Software, limits the Software to the License Parameters, and causes other effects.
1.4. “License” means the grant of the license from APPROVED NETWORKS to Licensee to the terms and conditions of this Agreement as in Section 2.1.
1.5. “Licensed Product” means the Software and the Documentation.
1.6. “Licensee” means the individual who reads and is prompted to accept this Agreement if that individual acquires the Tool for him or herself, or the company, or other legal entity for whom that individual acquires the Tool.
1.7. “Order Documents” means documents agreed in writing by APPROVED NETWORKS and evidencing APPROVED NETWORKS’s and Licensee’s agreement regarding the APPROVED NETWORKS Products to be sold and Licensed Products to be licensed to Licensee, the related license fees, and the License Parameters. The Order Documents may include exhibits, schedules, service orders, purchase orders, invoices and other such documents.
1.8. “Product” means the Tool, the Licensed Product and the Medium.
1.9. “Software” includes computer software programs of APPROVED NETWORKS used in connection with the Tool, whether in source code or object code.
1.10. “Use” means the act of using the Tool, including but not limited to loading, executing, storing, utilizing, accessing, displaying, reading or otherwise interacting with the Software and/or Documentation
2. License Grant and Scope
2.1. Grant of License. APPROVED NETWORKS hereby grants to Licensee and Licensee hereby accepts from APPROVED NETWORKS a limited, fully paid, worldwide, personal, non-exclusive, non-transferable right and license to Use the Tool and the Software for the sole purpose of programming a OnePort optical transceiver to connect to communications equipment selected by the Licensee, and to use the Documentation applicable to such Software, subject to the terms and conditions of this Agreement, the Order Documents, and the License Parameters.
2.2. Activation. Licensee must activate the Licensee’s copy of the Software with the License Key in the manner described in the Documentation and as provided for in the Order Documents.
2.3. Restrictions to Use. Licensee agrees that it will not modify any Licensed Product, create any derivative work based upon a Licensed Product or authorize or assist any third party to do so. Licensee agrees that it will not Use the Licensed Products except as expressly authorized in this Agreement.
2.4. Copies. For each computer to which a Tool is connected, Licensee shall have the right to execute one (1) copy of the Software at any time. Licensee shall have the right to create, maintain and implement a reasonable number of copies of the Software for back-up and archival purposes. Licensee shall have the right to create and maintain a reasonable number of copies of the Documentation for internal use.
2.5.1. Releases. Releases mean new versions of the Software. Such Releases may be either provided either as patches to or complete replacement of the Software. Releases do not include new products, optional enhancements or new or add‐on products that are priced and sold separately by Champion One. Champion One is the sole determiner of the availability and designation of a Release. Licensee must download and install any New Release that Champion One makes available to Licensee. When so doing, Licensee must first download and install all Prior Releases that Licensee has not previously downloaded and installed, beginning with the earliest such Prior Release and continuing in chronological order. Upon installation of any New Release and any Prior Releases, the warranties of Sections 4.1 and 4.2 shall apply without modification.
2.5.2. Rights to Releases. Licensee rights with respect to a New Release shall, unless otherwise provided in the accompanying Order Documents, be the same as the Previous Release. Licensee is granted a single license for each copy of the Software and that license automatically transfers to the New Release once installed.
2.6. Third Parties. Licensee must not permit the Tool to be used by third parties. Licensee agrees to be responsible for any and all losses or damages caused by unauthorized use of the Tool.
2.7. Open Source Software. In addition to the Software, certain other software (the "Open Source Software") is provided licensed as free software. The Open Source Software includes but is not limited to the open source code software known as Linux and open source code software developed by the Apache Software Foundation, the open source code NewtonsoftJson.net software licensed under the MIT license, open source code NSIS software licensed under the zlip/libpng license, and the open source Roboto Font software licensed under the Apache license. The Open Source Software is documented at https://approvednetworks.com/oneport-eula/, which lists the Open Source packages of Programs, and the appropriate open source license under which that package has been released, including but not limited to the MIT license, the zlip/libpng license, the GNU General Public License (GPL) 2.0 and the Apache Software License, Version 1.1. The document further links to the original and any modified versions of the source code of the relevant Programs as required. Licensee acknowledges and agrees that its rights and obligations with respect to the Open Source Software are governed by the terms of the listed licenses. For the avoidance of doubt, Licensee acknowledges and agrees that the terms "Software", "Product", "Documentation", "License" and "Licensed Product" do not include the Open Source Software or any documentation relating thereto.
3. Ownership and Intellectual Property
3.1. Ownership. As between APPROVED NETWORKS and its suppliers on the one hand and Licensee on the other hand, APPROVED NETWORKS and/or its suppliers retain title to Licensed Products (excluding media on which the Licensed Products are recorded), including all copies, partial copies, compilations or translations thereof made by Licensee and all copyrights, patent rights, trademark rights, trade secrets and other intellectual property rights related thereto, and no title to the Licensed Products or such intellectual property rights is transferred to Licensee. All suggestions, solutions, improvements, corrections, and other contributions provided by Licensee regarding the Licensed Product shall become the property of APPROVED NETWORKS and Licensee hereby agrees to assign any such rights to Licensee.
3.2. Proprietary Markings. Licensee agrees not remove, alter, or obscure any of copyright notices, proprietary legends, trademark or service mark attributions, patent markings or other indicia of ownership (the "Marks") from the Licensed Products. Additionally, Licensee agrees to reproduce and include Marks on any permitted copies of a Licensed Product, or on any portion thereof.
3.3. Notice of Breach/Infringement. If Licensee acquires actual knowledge of any breach of this Section 3 or any unauthorized access to the Licensed Products, copyright infringement, trademark infringement, patent infringement, software piracy or other misuse, infringement or misappropriation of APPROVED NETWORKS's Intellectual Property Rights, Licensee agrees to immediately notify APPROVED NETWORKS. Licensee further agrees to cooperate with APPROVED NETWORKS to determine the existence and extent of and to remedy any such unauthorized access, misuse, infringement, misappropriation, piracy or breach.
3.4. Right to Audit. With fifteen (15) days written notice, Licensee shall allow a third party auditor retained by APPROVED NETWORKS to enter its premises to verify Licensee’s compliance with the provisions of this Agreement. If Licensee is found not to be in substantial compliance with its obligations under this Agreement, Licensee shall pay the reasonable expenses incurred by APPROVED NETWORKS associated with such inspection and shall promptly take measures to come into compliance. Such audit shall not be conducted more frequently than once during any twelve (12) consecutive month period unless a violation of this Agreement was found in the immediately preceding audit. APPROVED NETWORKS's rights under this Section 3.5 shall survive for one (1) year following termination or expiration of this Agreement.
3.5.1. Confidential Information. “Confidential Information” means nonpublic information revealed by or through the either party (the “Disclosing Party”) (whether in writing, orally or by another means) to the other party (the “Receiving Party”) including, without limitation, (i) all forms and types of customer, financial, business, scientific, technical, economic, or engineering information including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing; (ii) information traditionally recognized as proprietary trade secrets; and (iii) all copies of any of the foregoing or any analyses, studies or reports that contain, are based on, or reflect any of the foregoing. For the avoidance of doubt, Licensor’s Confidential Information includes the Software and Documentation. The term “Confidential Information” does not include information which: (a) is or becomes generally available to the public other than as a result of disclosure by Receiving Party (or any person to whom the Receiving Party disclosed such information); (b) was known by the Receiving Party prior to its disclosure by the Disclosing Party; (c) was independently developed by the Receiving Party without use of the Confidential Information of the Disclosing Party; or (d) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party, provided that such source is not bound by a confidentiality agreement, confidentiality obligation or fiduciary duty which prohibits disclosure.
3.5.2. Duty of Confidentiality. At all times the Receiving Party shall protect and preserve the Confidential Information of the Disclosing Party as confidential, using no less care than that with which it protects and preserves its own highly confidential and proprietary information (but in no event less than a reasonable degree of care), and shall not use the Confidential Information as necessary to perform its obligations under this Agreement (the “Limited Purpose”). The Receiving Party may disclose, distribute or disseminate the Confidential Information to its employees provided that the Receiving Party reasonably believes that those employees and consultants have a need to know and such employees and consultants are bound by confidentiality obligations at least as restrictive as those contained herein. Each Party shall remain at all times responsible for any breach of this Agreement by any of its employees or consultants. The Receiving Party shall not disclose, distribute, or disseminate the Confidential Information to any third party without the prior written consent of the Disclosing Party.
3.5.3. Compelled Disclosure. In the event that the Receiving Party becomes or may become legally compelled to disclose any Confidential Information of the Disclosing Party (whether by deposition, interrogatory, request for documents, subpoena, civil investigative demand or other process or otherwise), the Receiving Party shall provide the Disclosing Party with prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Agreement.
3.5.4. Return of Confidential Information. Promptly following the request of the Disclosing Party, the Receiving Party shall return to the Disclosing Party, or, at the Disclosing Party’s option, destroy all materials that are in written, electronic or other tangible form that contain, summarize or abstract any portion of the Confidential Information of the Disclosing Party, including, without limitation, all copies, extracts and derivations of such materials.
3.5.5. Remedies. The parties acknowledge that the Disclosing Party’s Confidential Information represents unique and valuable assets. The Receiving Party agrees that, in the event of a breach of confidentiality obligations, monetary damages may not be an adequate remedy and the Disclosing Party shall be entitled to seek such other remedies as may be available in law or in equity, including injunctive relief.
4. Limited Warranties, Disclaimers and Limitation of Liability
4.1. Limited Products Warranty. For a period of thirty (30) days following shipment of the Software, APPROVED NETWORKS warrants that the Tool and Software, standing alone, without use in combination or conjunction with any third party software or apparatus other than a computer used to operate the Tool, and excluding the open Source Software, will perform substantially in accordance with the specifications included in the applicable Documentation. This limited Warranty is for the Tool and Software alone, and does not extend to the particular Medium by which the Software is conveyed to the Licensee. APPROVED NETWORKS does not warrant that (a) the Products will meet Licensee’s requirements, will operate in the combinations which may be selected for use by Licensee, will produce the results desired by Licensee, will operate uninterrupted or will operate in an error-free manner or (b) all defects will be corrected or are correctable. This limited warranty will become null and void if the failure of a Product to perform substantially in accordance with the specifications included in the applicable Documentation is a result of an accident, abuse, or misapplication caused by Licensee. APPROVED NETWORKS's entire liability and Licensee’s exclusive remedy under this limited warranty is, at APPROVED NETWORKS' s option, either (a) return of the fee paid with respect to the applicable Product; or (b) repair or replacement of the applicable Product or any portion thereof that does not conform to the foregoing limited warranties. Any replacement of Product will be warranted in accordance with the terms and conditions of this Section 4 for the remainder of the original warranty period or thirty (30) days, whichever is longer. Notice of a warranty claim must be delivered to APPROVED NETWORKS during the applicable warranty period.
4.2. WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY. LICENSEE ACKNOWLEDGES THAT EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, APPROVED NETWORKS HAS NOT MADE ANY REPRESENTATION OR WARRANTY TO LICENSEE REGARDING THE PRODUCTS, AND/OR OPEN SOURCE SOFTWARE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, APPROVED NETWORKS DISCLAIMS ANY IMPLIED WARRANTY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY WITH RESPECT TO TITLE, NON¬INFRINGEMENT, MERCHANTABILITY, DESIGN, CONDITION, DURABILITY, PERFORMANCE, QUALITY, CAPACITY OR TECHNICAL COMPATIBILITY OF THE PRODUCTS, AND/OR OPEN SOURCE SOFTWARE OR FITNESS OF THE PRODUCTS, AND/OR OPEN SOURCE SOFTWARE FOR A PARTICULAR PURPOSE. LICENSEE AGREES THAT APPROVED NETWORKS WILL NOT BE LIABLE FOR EXEMPLARY, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES WHICH ARISE DIRECTLY OR INDIRECTLY OUT OF THE PURCHASE, SALE, USE OF AND/OR INABILITY TO USE THE PRODUCTS, AND/OR OPEN SOURCE SOFTWARE WHETHER SUCH DAMAGES ARE BASED UPON CONTRACT, TORT, INTENTIONAL CONDUCT, EQUITY OR PURSUANT TO SOME OTHER THEORY, INCLUDING, WITHOUT LIMITATION, BREACH OF WARRANTY, NEGLIGENCE OR STRICT LIABILITY, WHETHER THE POSSIBILITY OF SUCH DAMAGES WAS MADE KNOWN TO OR WAS FORESEEABLE BY APPROVED NETWORKS AND WHETHER SUCH DAMAGES ARE ASSERTED BY LICENSEE OR SOME OTHER PARTY. LICENSEE FURTHER ACKNOWLEDGES THAT APPROVED NETWORKS's MAXIMUM AGGREGATE LIABILITY TO LICENSEE UNDER ANY LEGAL THEORY FOR DAMAGES ARISING DIRECTLY OR INDIRECTLY OUT OF THE PURCHASE, SALE, USE OF AND/OR INABILITY TO USE THE PRODUCTS AND/OR OPEN SOURCE SOFTWARE WILL NOT IN ANY EVENT EXCEED THE LESSER OF (a) THE ACTUAL DAMAGES SUFFERED BY LICENSEE OR (b) AN AMOUNT EQUAL TO TWO (2) TIMES THE PRODUCT FEE PAID BY LICENSEE TO APPROVED NETWORKS. LICENSEE ACKNOWLEDGES THAT THE PRICING OF THE PRODUCTS REFLECTS THE INTENT OF THE PARTIES TO LIMIT APPROVED NETWORKS's LIABILITY AS PROVIDED HEREIN. THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE INTENDED TO LIMIT APPROVED NETWORKS's LIABILITY AND WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. ANY ACTION, CLAIM OR PROCEEDING RELATING TO THIS AGREEMENT, THE PRODUCTS, AND/OR OPEN SOURCE SOFTWARE OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, MUST BE BROUGHT WITHIN TWELVE (12) MONTHS FOLLOWING THE ACTION OR EVENT GIVING RISE TO SUCH ACTION, CLAIM OR PROCEEDING.
4.3. NO WARRANTY FOR CRITICAL APPLICATIONS. As used herein, “Critical Applications” means applications requiring fail-safe performance or applications in which failure could lead to death, personal injury, or severe physical or environmental damage. APPROVED NETWORKS has not validated any OnePort optical transceiver for use in any Critical Application, and APPROVED NETWORKS does not warrant any OnePort optical transceiver, whether or not programmed using the Products, in any respect whatsoever, if the OnePort optical transceiver is used in a Critical Application.
4.4. WARRANTY FOR PROPER OR INTENDED OPERATION OF A PROGRAMMED TRANSCIEVER. APPROVED NETWORKS warrants only that when a OnePort optical transceiver has been programmed using the Tool, the transceiver will communicate with the equipment specified by the Licensee for the period specified at https://approvednetworks.com/warranty. If the transceiver malfunctions during this period, APPROVED NETWORKS’s only obligation is to repair or replace the transceiver and/or the Tool. Costs of removal and replacement of the transceiver is the exclusive responsibility of Licensee. In the event of such repair or replacement, the above-stated warranty will be reinstated, beginning with when the repaired/replaced Tool/transceiver is put into service.
4.5. EXCLUSION OF LIABILITY FOR DAMAGES TO EQUIPMENT CONNECTED TO OR USED WITH A OnePort OPTICAL TRANSCEIVER. The parties specifically agree that APPROVED NETWORKS will not be liable to Licensee for damages (including but not limited to direct, indirect, incidental, or consequential damages) to any equipment connected to or used with a OnePort optical transceiver.
5. Term; Certain Material Breaches; Default and Termination
5.1. General. The term of this Agreement shall commence on the Effective Date and shall continue in full force and effect until the termination of the License, unless terminated earlier under Section 5.2 of this Agreement.
5.2. Early Termination. Notwithstanding the foregoing, this Agreement and/or the License may be terminated as follows: (a) at any time upon mutual written agreement of the parties; or (b) by either party (the “notifying party”) by written notice to the other party (the “notified party”) if the notified party breaches a material obligation of the notified party under this Agreement and such breach continues uncorrected for a period of thirty (30) days after notice in writing thereof to the notified party.
5.3. Effect of Termination. Upon termination or expiration of this Agreement, (a) the License shall terminate immediately and Licensee agrees to immediately cease using the Tool or any Confidential Information; (b) Licensee agrees to pay any and all undisputed sums then owing to APPROVED NETWORKS hereunder within ten (10) business days from the effective date of termination; and (c) Licensee agrees to either deliver to APPROVED NETWORKS or destroy all the Software and related Documentation, together with all copies thereof (including erasing the Software from all memory or data storage apparatus under the control of Licensee) and warrant in writing to APPROVED NETWORKS within thirty (30) days of termination that such materials have been either returned to APPROVED NETWORKS and/or destroyed and erased from such memory and/or data storage apparatus. Upon termination or expiration of this Agreement, Licensee will not be entitled to any refund of any payments made by Licensee unless explicitly provided for herein.
5.4. Certain Material Licensee Obligations
5.4.1. Licensee must not use any OnePort optical transceiver that has been programmed using the Tool for any Critical Application before Licensee has appropriately validated such programmed OnePort optical transceiver for such Critical Application and has received all applicable governmental approvals therefor. Any such pre-validation or pre-approval use is a material breach of Licensee’s obligations hereunder.
5.4.2. Licensee must not take or fail to take any action that could subject the Products to an Excluded License. As used herein, “Excluded License” means any license that requires, as a condition of use, modification, or distribution of software subject to the Excluded License, that such software or other software combined and/or distributed with the software be (i) disclosed or distributed in source code form; (ii) licensed for the purpose of making derivative works; or (iii) redistributable at no charge. Any such action or failure to take such action is a material breach of Licensee’s obligations hereunder.
5.4.3. Licensee must not, whether through use of disassemblers or any other means whatsoever (including but not limited to manual, mechanical or electrical means), reverse engineer, decompile, decipher, disassemble or derive source code from the Software, or attempt to or permit any third party to do any of the foregoing, including causing the Software to be destroyed or disabled. Any attempt to do any of these things is a material breach of this Agreement.
5.5. Survival. The respective rights and obligations of APPROVED NETWORKS and Licensee under the provisions of Sections 3, 4, 5, and 6, will survive termination or expiration of this Agreement.
6.1. Governing Law/Arbitration. The laws of the State of Delaware, excluding its choice of law provisions, will govern the formation, interpretation, and performance of this Agreement. Customer agrees to submit any dispute, claim or controversy that may arise out of the rendering of Services or providing of Materials as set forth in this Agreement to arbitration by a single arbitrator in Wilmington, Delaware in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. Judgment upon the arbitration award shall be final, binding and conclusive and may be entered in any court having jurisdiction. Nothing contained herein will be deemed to be a waiver of any right that may exist to remove an action filed in state court to federal court. The parties elect not to be governed by the United Nations convention on contracts for the international sale of goods.
6.2. Notices. All notices, demands, requests or other communications that may be or are required to be given, served or sent by either party to the other party pursuant to this Agreement will be in writing and will be mailed by first class, registered or certified mail, return receipt requested, postage prepaid, sent by a reputable, national, over-night courier service (with a requirement for receipt of delivery) or transmitted by hand delivery, telegram or facsimile transmission addressed to the parties at their principal office. Either party may designate by written notice a new address to which any notice, demand, request, or communication may thereafter be given, served or sent. Each notice, demand, request or communication that is mailed, delivered or transmitted in the manner described above will be deemed sufficiently given, served, sent and received for all purposes at such time as it is delivered to the addressee with the return receipt, the delivery receipt, the affidavit of messenger or (with respect to a facsimile transmission) the answer back being deemed conclusive evidence of such delivery or at such time as delivery is refused by the addressee upon presentation.
6.3. Entire Agreement. This Agreement and the associated Order Documents represent the parties' entire agreement with respect to the subject matter of this Agreement and supersedes and replaces any prior agreement or understanding with respect to that subject matter. All prior and all oral representations, warranties and covenants with respect to the subject matter of this Agreement will be deemed to have been merged into and superseded by this Agreement. This Agreement may not be amended or supplemented except pursuant to a written instrument signed by the party against whom such amendment or supplement is to be enforced. This Agreement will prevail over any additional, conflicting or inconsistent terms and conditions that may appear on any purchase order, confirmation or other similar document sent or delivered by a party to this Agreement.
6.4. "Restricted Rights". The Products are commercial in nature. The Software and Documentation are "Commercial Items" as that term is defined in 48 C.F.R. section 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are defined in 48 C.F.R. section 252.227-7014(a)(5) and 48 C.F.R. section 252.227-7014(a)(1), and used in 48 C.F.R. section 12.212 and 48 C.F.R. section 227.7202, as applicable. Consistent with 48 C.F.R. section 12.212, 48 C.F.R. section 252.227-7015, 48 C.F.R. section 227.7202 through 227.7202-4, 48 C.F.R. section 52.227-14, and other relevant sections of the Code of Federal Regulations, as applicable, the Software and Documentation are licensed to United States Government end users with only those rights granted to all other end users, according to the terms and conditions contained in this Agreement. The manufacturer of the Products is APPROVED NETWORKS, Inc., 400 Cottontail Lane, Somerset, NJ 08873
6.5. Severability. The parties acknowledge that if any provision of this Agreement is determined to be invalid or unenforceable, it is their desire and intention that such provision be reformed and construed in such manner that it will, to the maximum extent practicable, be deemed to be valid and enforceable. Accordingly, in lieu of such invalid or unenforceable provision, there will be added automatically as a part of this Agreement a provision as similar in its terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
6.6. Third Party Beneficiaries. Except as expressly set forth or referred to in this Agreement, nothing in this Agreement is intended or will be construed to confer upon or give to any party other than the parties to this Agreement and their successors and permitted assigns, if any, any rights or remedies under or by reason of this Agreement. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise or the exercise of any other right.
6.7. Relationship of Parties. Nothing contained in this Agreement will be deemed to create any agency, joint venture, partnership or similar relationship between the parties to this Agreement. Nothing contained in this Agreement will be deemed to authorize any party to this Agreement to bind or obligate the other party.
6.8. Export. Licensee hereby agrees that Licensee will not export, directly or indirectly, any U.S. source software acquired from APPROVED NETWORKS and/or its reseller, including, without limitation, the Software, to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval, without first obtaining the written consent to do so from (a) the United States Department of Commerce or other agency of the United States Government when required by an applicable statute or regulation, and (b) APPROVED NETWORKS, which consent APPROVED NETWORKS may withhold if such export would, in the reasonable business judgment of APPROVED NETWORKS, be detrimental to the interests of APPROVED NETWORKS.
6.9. Force Majeure. Neither party to this Agreement shall be liable to the other for any delay or failure by such party to perform its obligations (excluding obligations to pay money) under this Agreement if such delay or failure arises from any cause or causes beyond the reasonable control of such party, including, without limitation, labor disputes, strikes, acts of God, floods, lightning, shortages of materials, rationing, utility or communication failures, earthquakes, casualty, war, acts of the public enemy, riots, insurrections, embargoes, blockades or regulations or orders of governmental authorities. If a party to this Agreement shall be delayed or prevented from performing such party's obligations pursuant to this Agreement due to any cause beyond such party's reasonable control, such delay shall be excused during the continuance of such delay and the period of performance shall be extended to the extent necessary to enable such party to perform its obligations after the cause of such delay has been removed; provided, however, if such performance is delayed for thirty (30) or more days, the party entitled to the benefit of such performance may elect to terminate this Agreement.
6.10. Publicity; References. Licensee agrees that (a) APPROVED NETWORKS may list Licensee as a customer of APPROVED NETWORKS in APPROVED NETWORKS' marketing and promotional materials, including on APPROVED NETWORKS' web site and in press releases; provided that APPROVED NETWORKS must obtain written consent from Licensee before using Licensee’s logos.