1. Hosting, License, Support and Scanners
1.1 General
Subject to the terms and conditions of this Agreement, TV, or its designee, shall remotely provide Virtual Desktop services (“TetherView Services” or “TV Services”) to the Customer with access through the Internet. TV does not guarantee any 3rd party applications and Customer must have proper licenses for access to 3rd party applications and provide those license numbers to TV when requested.
1.2 Hours of Availability
TV shall use commercially reasonable efforts to make this service available twenty-four (24) hours per day, 7 days a week. Notwithstanding the foregoing, TV reserves the right to suspend Customers access to TetherView Services (i) in the event that Customer materially fails to fulfill its obligations under this Agreement, (ii) for purposes of scheduled maintenance, or (iii) for purposes of emergency maintenance work at any time as deemed appropriate by TV.
1.3 License
During the Term and subject to the terms and conditions of this Agreement, TV hereby grants to Customer to have its employees or clients access TetherView services and use Tetherview Software subject to the terms of the TetherView End User License Agreement.
1.4 Restrictions
TV will strictly adhere to all End User License Agreements (EULA) for all software, programs, applications, and services attached to the use of TetherView Services. Therefore, the Customer shall not reverse engineer, decompile, translate, disassemble, attempt to discover the source code of, or in any other way manipulate the Application in order to use it outside of the EULA agreement for that particular Application, or ask that TV assist in or complete such actions on behalf of the Customer. Additionally, the Customer shall not license, sub-license, distribute, or disclose the use of their Application(s) to any third party, or use their Application(s) for any purpose other than accessing the Customer’s own data in accordance with this Agreement. Customer agrees that they are solely responsible for the content of any material posted to their Application, and that no end-user will attempt to access programs, options, settings, services, files, applications, or servers not within their user rights. At no time may the Customer share user credentials, license numbers, or any other applicable information used to access TV services or 3rd party applications. All login credentials and license information should directly and accurately reflect the proper names, amounts, and versions of both the end users and software/applications being utilized by the Customer. If the Customer is found to be performing any of the aforementioned actions or soliciting the services of TV in performing these actions, TV reserves the right to cancel the existing contract with the Customer immediately with no refund.
1.5 Support
TV operates a help desk between the hours of 8:00 AM and 8:00 PM EST, Monday through Friday, exclusive of TV’s scheduled holidays (which are: Christmas Day, New Year’s Day, Thanksgiving, July 4th, Memorial Day, Labor Day). The help desk will accept inquiries by telephone, electronic mail, or ticketing system solely from those users designated by Customer to make inquiries. TV will use its best efforts to respond to inquiries within 4 hours after receipt.
1.6 Security
TV will use industry standard security procedures to secure the transmission of all information to and from the user and TetherView Service. Such security protection will include, at a minimum, the following: (i) user Identification and access controls designed to limit access to information to Customer’s authorized users; (ii) industry standard encryption techniques when information is transmitted to or from TetherView Service; and (iii) physical security measures, including securing all information on a secure server, in locked data cabinets within a secure SOC2 Type II Certified Data Center.
1.7 Backup
TV will maintain and follow a disaster recovery plan designed to minimize disruption to Customer’s comprised of internal procedures to recover the TV environment in the event of a disaster. The plan provides for daily back-up of Customer data. Daily back-ups are stored for 40 days.
1.8 Third Party Software
TV does not guarantee the functionality of any 3rd party applications. There will be no refunds by TV should app not function to clients satisfaction.
1.9 System Requirements
Broadband Internet connection with at least 3mbps DOWNLOAD and 512kbps UPLOAD speeds Macintosh: Minimum OS of 10.6 or above must download and install Remote Desktop software (no additional charge) for connection to service Processor: 2.8GHz Intel Core 2 Duo Memory: 4 GB 667 MHz DDR2 SDRAM Windows PC: MINIMUM: Windows XP SP3, Windows Vista SP2, Windows 7, or Windows 8 (as of 4/8/14 Microsoft is no longer supporting any versions of Windows XP.) Remote Desktop Protocol (Connection) 7.0 or above 150 MB Hard Drive Space 2 GB RAM 1024×768 Monitor Resolution RECOMMENDED: Windows 7 SP1 Remote Desktop Protocol (Connection) 7.1 2 GB Hard Drive Space 4 GB RAM Dual Screen monitors with a combined screen resolution no higher than 4096×2048 In an office environment with multiple connections coming from many computers, a Business Class router is required for optimal performance.
2. Customers Obligations
2.1 Integrity
Use of TV services and networks is granted to the Customer based on their contractual agreement(s) with Software providers. TV reserves the right to immediately terminate a contractual agreement/relationship with the Customer at any time for unlawful, malicious, or inappropriate conduct carried out by the Customer on such systems, including, but not limited to:
- Accessing or attempting to access TV company information of any kind as a means to view, learn, solicit, or use TV property.
- Accessing or attempting to access networks, servers, drives, folders, or files other than that of the Customer, or those that the Customer has not been expressively given permission to access;
- Violating the laws and regulations of the United States or any other nation or any state, city, province, or other local jurisdiction in any way;
- Deliberately propagating any virus, worm, Trojan horse, trap-door program code, or other code or file designed to disrupt, disable, impair, or otherwise harm TV , services, networks, ASP Applications or 3rd party application or systems of any other individual or entity;
- Deliberately causing congestion, disruption, disablement, alteration, or impairment of TV networks or systems;
- Downloading, uploading, or installing any software, applications, or programs on TV servers or networks that have not been approved by TV and/or are not included in the Customer’s contract with TV;
- Mining electronic currency.
- Defeating or attempting to defeat security restrictions on TV systems and applications.
2.2 End User License Agreements
Customer shall not reverse engineer, decompile, translate, disassemble, attempt to discover the source code of, or in any other way manipulate any TV software or service, ASP Application, or 3rd party application in order to use it outside of the EULA agreement for that particular Application or software, or request TV assist in any such actions on behalf of the Customer. Customer agrees that they are solely responsible for the content of any material posted to their Application, and that no end user will attempt to access programs, options, settings, services, files, applications, or servers not within their user rights. Customer is solely responsible for any damages, whether technically, virtually, physically, or financially to a software, application, or TV service, that derives from negligent use or tampering by an end user breaking or attempting to break the EULA for a particular service, software, or application. At no time may the Customer share user credentials, license numbers, or any other applicable information used to access TV Services or 3rd party applications. All login credentials and license information should directly and accurately reflect the proper names, amounts, and versions of both the end users and software/applications being utilized by the Customer. Customer may not install Microsoft Terminal Services or allow remote desktop services “RDS” to run without the expressed written consent of TV. Installation of Terminal Services or RDS will result in additional charges to the Customer. If the Customer is found to be performing any of the aforementioned actions or soliciting the services of TV in performing these actions, TV reserves the right to cancel the existing contract with the Customer immediately with no refund.
2.3 Piracy
Customer shall not license, sub-license, distribute, or disclose the use of their Application(s) to any third party, or use their Application(s) for any purpose other than accessing the Customer’s own data in accordance with this Agreement. At no time may the Customer share user credentials, license numbers, or any other applicable information used to access TV Services or 3rd party applications. All login credentials and license information should directly and accurately reflect the proper names, amounts, and versions of both the end users and software/applications being utilized by the Customer. If the Customer is found to be performing any of the aforementioned actions or soliciting the services of TV in performing these actions, TV shall view these actions as piracy and can cancel the existing contract with the Customer immediately with no refund.
2.4 Cooperation
Customer shall reasonably cooperate with TV in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as TV may reasonably request from the Customer.
2.5 Authorized Users/Contacts
Any person(s) listed on a Customer account as either an “Authorized User” or “Authorized Contact” shall be the only representation of the Customer allowed making billable changes to their account with TV. The authorized users/contacts have the ability to add additional authorized users/contacts by submitting the request directly to a representative of TV. These authorized users/contacts serve as the primary business contact between TV and users, and they are responsible for ensuring that all users within their account are aware of contract renewal dates and TV company policies and procedures.
3. Payment
3.1 Fees
Payments by Credit Card or Bank Transfer: prior to activation of user accounts and at any applicable time thereafter authorize TV to charge the credit card provided or transfer funds from the bank account provided for the amount of the fees due for the agreed upon services, together with any applicable set-up charges, registration fees, bank transfer fees, or fees resulting from services provided in addition to or in excess of the previously agreed-upon limits, or any other charges outlined in the signed contract.
3.2 Refunds
No refunds will be granted after login credentials are issued to the Customer or 3 days from the date of purchase date, whichever comes first.
3.3 Changes to Fees or Billing Methods
We reserve the right to change License Fees or billing methods at any time and we will provide notice of any such change at least thirty (30) days in advance. If any change is unacceptable to Customer, Customer may cancel account at that time, but TV will not refund any fees that may have accrued prior to cancellation.
3.4 Credit Card/Bank Draft
Customer may pay the Fees by credit card or bank draft and is representing and warrants that they are the authorized user of the credit card and/or signee. Where a contract is entered into on a yearly subscription basis, Customer agrees that the contract will automatically renew if written notice is not received within 30 days prior to expiration. Customer agrees to promptly notify TV of any changes to credit card account number, its expiration date or billing address, and agrees to promptly notify TV if credit card expires or is cancelled for any reason.
3.5 Taxes
Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, property and similar taxes, where applicable, TV agrees to itemize any such taxes on the invoices, and Customer agrees to pay such taxes to TV as set forth.
4. Confidentiality
4.1 Confidential Information
Shall mean confidential or shall include proprietary information that is disclosed by one party to the other party under this Agreement including, without limitation, business and product plans, customer information, marketing materials, employee names and other confidential business information. Confidential Information shall not include information which: (i) is or becomes public knowledge without any action by, or involvement of, the party receiving the Confidential Information hereunder; (ii) is independently developed by the receiving party without use of the other parties Confidential Information; (iii) is already known on an unrestricted basis to the receiving party at the time of disclosure under this Agreement; or (iv) is disclosed to the receiving party by a third party who is entitled to disclose it without restriction.
4.2 Protection of Confidential Information
Each party agrees not to transfer or otherwise disclose the Confidential Information of the other party to any third party. Each party shall (i) give access to such Confidential Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (ii) take the same security precautions to protect against disclosure or unauthorized use of such Confidential Information that the party takes with its own confidential information, but, in no event, shall a party apply less than a reasonable standard of care to prevent such disclosure or unauthorized use. Nothing in this Agreement shall prevent either party from disclosing the Confidential Information of the other party pursuant to any judicial or governmental order, provided that the party gives the other party reasonable prior notice of such disclosure (to the extent it is permitted to do so under such order) to contest such order.
4.3 Non-Use and Non-Disclosure
Commencing on the date hereof and at all times thereafter, TV shall hold in the strictest confidence (except as previously approved by the Customer in writing), and shall not, directly or indirectly, disclose, divulge, reveal, report, publish, transfer or otherwise communicate, or use for its or his own benefit or the benefit of any other person, partnership, firm, corporation or other entity, or use to the detriment of the Customer, or misuse in any way, any Confidential Information received from Customer. TV will in no way infringe upon any copyrights of the Customer or and will in no way use, copy, appropriate or redistribute any part of the Confidential Information, whether obtained directly or indirectly from the Customer, without a specific written license agreement with the Customer. It is agreed that any derivative, modification or elaboration of any Confidential Information by any third party remains the proprietary property of the Customer for purposes of this Agreement. TV and the Customer each hereby stipulate that, as between them, all Confidential Information acquired by the Customer constitutes important, material and confidential and/or proprietary information of the Business, constitutes unique and valuable information, and affects the successful conduct of the Business and the Customer’s goodwill, and that the Customer shall be entitled to recover its damages, in addition to any injunctive remedy that may be available, for any breach of this agreement.
5. Intellectual Property Rights
Except as expressly set forth herein, TV shall retain all right, title and interest in, and shall be the sole owner of all forms of intellectual property rights and protections in and to TV Software and Services provided, the documentation for the TV Software, and TV Confidential Information. Customer shall maintain all rights in the content that it provides to TV, as well as all of its Confidential Information, including, without limitation, information in TV’s databases related to Customer, its users, clients and their respective users. Neither party shall copy, distribute, reproduce or use the other party’s property except as expressly permitted under this Agreement. If Customer breaches any portion of these terms and conditions, TV reserves the right to restrict user access to all data until Customer becomes compliant with terms & conditions.
6. Term and Termination
6.1 Term
This Service Agreement shall be automatically renewed for twelve (12) months, unless terminated by either party, by giving thirty (30) calendar days written notice to the other party prior to the expiration of the initial Term or any successive Term. Section 5 of the TetherView Software EULA further defines the terms of the agreement related to TV Software.
7. Limited Warranty
7.1 Please see Section 3 of TetherView EULA attached for more information.
7.2 Warranty Disclaimer
BOTH PARTIES HEREBY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND TITLE. ALL TV SERVICES ARE PROVIDED TO YOU ON AN “AS IS” BASIS, AND WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
8. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE ASP APPLICATION OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, LOST WAGES, MAN HOURS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES PAID TO TV HEREUNDER DURING THE PRECEDING SIX MONTHS. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.CUSTOMER AGREES TO THE TERMS OF THE SLA AND PRIVACY POLICY FOUND AT TETHERVIEW.COM/CUSTOMER-TERMS-AND-CONDITIONS
9. General Provisions
9.1 Relationship of the Parties
The relationship established between the parties by this Agreement is that of independent contractors.
9.2 Complete Understanding; Modification
This Master Service Agreement and the TetherView End User Software License Agreement attached constitute the complete and exclusive agreement of the parties and supersedes all prior understandings and agreements, whether written or oral, with respect to the subject matter hereof. No modification of or amendment to this Agreement nor any waiver of any rights under this Agreement shall be effective unless agreed in writing signed by both parties.
9.3 Severability
If any provision of this Agreement is held to be invalid or unenforceable under the circumstances, such provisions application in any other circumstances and the remaining provisions of this Agreement shall not be affected thereby.
9.4 Non-assign ability and Binding Effect
Neither party shall assign this Agreement to any third party without the prior written consent of the other party which will not be unreasonably withheld, except that either party may assign this Agreement to any successor all or substantially all of its stock or assets.
9.5 Notices
All notices and other communications hereunder shall be in writing and shall be deemed effective when delivered by hand or upon receipt when mailed by registered or certified mail (return receipt requested), postage prepaid, to the parties at the addresses first listed above (or at such other address for a party as shall be specified by like notice).
9.6 Force Majeure.
Neither party shall be liable for any loss resulting from a cause over which it does not have reasonable control including, but not limited to, failure of electronic or mechanical equipment or communication lines, telephone or other interconnect or Internet problems, severe weather, earthquakes, or natural disasters, wars, or governmental restrictions. To the extent any such event continues for a period of more than thirty (30) days, Customer may terminate this Agreement without liability of any kind.
9.7 Waiver
No failure or delay on the part of any party in exercising any right hereunder, irrespective of the length of time for which such failure or delay shall continue, will operate as a waiver of, or impair, any such right. No single or partial exercise of any right hereunder shall preclude any other or further exercise thereof or the exercise of any other right. No waiver of any right hereunder will be effective unless given in a signed writing.
9.8 Governing Law
This Agreement is governed by the substantive laws of the State of New York. The federal and state courts sitting in New York, New York, U.S.A. shall have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement.
End User Software License Agreement
THIS DOCUMENT SETS FORTH THE TETHERVIEW, LLC. END USER SOFTWARE LICENSE AGREEMENT (THE “AGREEMENT”). BY INSTALLING AND USING THE SOFTWARE PRODUCT WITH WHICH THIS DOCUMENT WAS PROVIDED (“SOFTWARE”), THE USER INSTALLING THE SOFTWARE, CREATES A LEGAL AGREEMENT BETWEEN TETHERVIEW, LLC. (“TETHERVIEW”) AND THE COMPANY THAT IS THE END USER OF THE SOFTWARE BEING INSTALLED (“CUSTOMER”). BY INSTALLING AND USING THE SOFTWARE (AS DEFINED BELOW), YOU REPRESENT THAT YOU HAVE BEEN AUTHORIZED TO ACCEPT AND ACKNOWLEDGE YOUR ACCEPTANCE OF THESE TERMS ON BEHALF OF THE CUSTOMER. IF YOU ARE NOT SO AUTHORIZED OR DO NOT AGREE TO THESE TERMS, THEN TETHERVIEW IS UNWILLING TO PERMIT ACCESS TO THE SOFTWARE OR THE INSTALLATION AND USE OF THE SOFTWARE, OR TO GRANT ANY LICENSE TO THE SOFTWARE, AND ANY INSTALLATION OR USE OF THE SOFTWARE WOULD BE A VIOLATION OF U.S. AND INTERNATIONAL COPYRIGHT LAWS AND CONVENTIONS. IF YOU ARE NOT WILLING TO ACCEPT THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS, INSTALL OR USE THE SOFTWARE. If you comply with these license terms, you have the rights below.
1. License Grant
a. Upon payment of the related fees for the Software, subject to the terms and conditions of this Agreement, TetherView grants to Customer a personal, non-exclusive and non-transferable license to use the Software and related documentation in object code form solely for Customer’s commercial use. Unless explicitly provided herein, this Agreement grants Customer no right to and Customer specifically agrees not to (i) copy all or any part of the Software; (ii) duplicate, change, alter, adapt, improve, enhance, revise, or summarize the Software or any part thereof; (iii) convey, sell, lease, rent, transfer, or further sublicense the Software or any part thereof or permit access to the Software by any third parties or, unless expressly authorized in writing by TetherView, use the Software for service bureau or time-sharing purposes; (iv) reverse compile, reverse assemble, reverse engineer, decompile, disassemble or otherwise attempt to create or recreate the source code from the Software furnished as object code or gain access to trade secrets or otherwise confidential information of TetherView or its licensors, (v) make error corrections to or otherwise modify or adapt the Software or create derivative works based upon the Software; (vi) distribute the Software, including electronic distribution; (vii) translate the Software into another computer language or (vii)permit any third party to do any of the foregoing.
b. To the extent required by law, at Customer’s request, TetherView shall provide Customer with the interface information needed to allow interoperability between the Software and another independently produced program, on payment of the applicable license fee(s) to TetherView. Customer shall strictly observe all obligations of confidentiality with respect to such information.
2. Ownership
a. Customer agrees that TetherView or its licensors own all right, title, and interest in the Software and in all Software now or hereafter subject to this Agreement and in all of patents, trademarks, trade names, inventions, copyrights, know-how, and trade secrets relating to the design, manufacture, operation or service of the Software. All right, title and interest in and to any feedback provided to TetherView with respect to the Software shall be owned by TetherView. Customer shall not give feedback that is subject to a license that requires TetherView to license its software or documentation to third parties because TetherView incorporates Customer’s feedback into TetherView products or services.
b. Except as expressly authorized herein, Customer shall not make any duplicates or copies of any Software, provided, however, that Customer may make one back-up copy or copies of the Software as may be necessary if the Software becomes inoperable. Customer shall not remove or alter any logo, trademark, copyright, confidentiality or other proprietary notices, legends, symbols or labels on the Software or any copies thereof. Customer shall not disclose the results of any benchmark testing or evaluation of the Software to any third party on any media, including but not limited to video clips or blogs, without TetherView’s prior written approval. Customer may not work around any technical limitations or restrictions in the Software without TetherView’s prior written approval.
c. Without limiting the license granted to Customer hereunder, neither title to nor ownership of the Software including derivative works, translations, compilations and copies thereof or any of its parts, nor any applicable rights therein as to patents, copyrights, trademarks, industrial designs, trade names, trade secrets or any other proprietary rights (each an “Intellectual Property Right”) are transferred to Customer, but shall remain the exclusive property of TetherView and/or its licensors. Except as expressly described in this Agreement, TetherView does not grant and Customer acknowledges that it shall have no license, right or other interest in, or to, any of the Intellectual Property Rights owned, used or claimed by TetherView and/or its third-party licensors.
d. Except as set forth herein, or as may be permitted in writing by TetherView, Customer shall not provide access to, transmit or otherwise make available, the Software and the Documentation or any part or any copy thereof or any other materials provided to Customer by TetherView to any third party; provided, however, that Customer may permit its employees, agents and contractors that are not TetherView competitors having a need-to-know for purposes of operating or maintaining the Software, access or use of the Software on behalf of Customer upon such employees’, agents’ and contractors’ agreement to access or use the Software in accordance with the limitations set forth in this Agreement, and subject to a non-disclosure agreement which is at least as protective as the obligations set forth herein. Customer will take appropriate action, by instruction, agreement, or otherwise, with the persons permitted access to the Software and related Documentation to enable Customer to satisfy its obligations under this Agreement.
3. Limited Warranty
a. TetherView warrants that for a period of ninety (90) days from the date of install /download that the Software shall substantially conform to the accompanying documentation. Except as for the foregoing, the Software is provided AS IS. This limited warranty extends only to Customer as the original licensee of the Software and may be enforced solely by Customer. Customer’s sole and exclusive remedy and the entire liability of TetherView and its suppliers under this limited warranty will be, at TetherView’s option, repair or replacement of the Software, or a refund of that share of the purchase price allocable thereto by TetherView or its designee, provided that TetherView or its designee shall have received from Customer during the related warranty period written notice of the alleged warranty breach. In no event does TetherView warrant that the Software is error free or that Customer will be able to operate the Software without problems or interruptions. No written or oral communication, information or advice given by TetherView, its employees or its distributors or resellers shall create a warranty or in any way increase the scope of TetherView’s liability hereunder.
b. This warranty does not apply if the Software (a) has been changed, except by TetherView, (b) has not been installed, operated, maintained, or repaired in accordance with instructions provided by TetherView, or (c) is used in hazardous activities.
c. This warranty does not apply if the Software is licensed for beta, evaluation, testing or demonstration purposes for which TetherView is not paid.
4. Disclaimer of Warranties; Limitation of Liability
a. TetherView disclaims any representations or warranty with respect to any Third-Party Software and in no event will be liable for any loss, claim or damage related thereto.
b. Except as provided in Section 4 above, there are no warranties, express, implied or arising from custom, course of dealing or trade usage, and TetherView specifically disclaims any implied warranties of title, non-infringement, merchantability and fitness for a particular purpose. TetherView’s express warranties will not be enlarged, diminished or affected by and no obligation or liability will arise out of TetherView’s rendering of technical or other advice or service in connection with the software or hardware.
c. To the extent permitted by law, in no event will TetherView or its licensors be liable to Customer or any third party for indirect, incidental, special, consequential, exemplary, multiple or punitive damages, whether foreseeable or unforeseeable, of any kind whatsoever (including, without limitation, lost profits, loss of goodwill, loss or damaged data, loss of software, downtime or costs of substitute products) arising from the license, delivery and/or use of the Software or any other act or omission of TetherView in connection with this Agreement regardless of the form of action, whether in contract, tort (including negligence), strict liability, or otherwise, even if TetherView has been advised of the possibility of such damages.
d. In no event will TetherView be liable for damages hereunder in excess of aggregate amounts actually received by TetherView in connection with this agreement. This limitation of liability is cumulative and not per incident. The limitations in this Section 4 shall apply notwithstanding the failure of essential purpose of any limited remedy.
5. Term and Termination
This Agreement is effective until terminated. Customer may terminate this Agreement at any time by destroying all copies of the Software and providing written notice of the same to Tetherview. This Agreement will terminate immediately without notice from TetherView if Customer fails to comply with any provision of this Agreement. Upon termination, Customer must immediately cease using and must destroy all copies of Software in its possession, ownership or control. The termination or expiration of this Agreement shall in no case relieve either party from its obligation to pay to the other party any sums accrued under this Agreement prior to such termination or expiration. The termination or expiration of this Agreement shall not affect the cumulative reservation by the parties of all other rights and remedies at law or in equity (unless expressly stated herein), or relieve the parties from the duty to hold in confidence confidential information received pursuant to this Agreement.
6. Use, Export, Re-export, & Transfer Controls
Customer hereby acknowledges that the Software Is subject to export controls under the laws and regulations of the United States. Customer agrees to comply with all laws and regulations governing the use, export, re-export, and transfer of the Software and will obtain all U.S. and local, permits, authorizations or agreements required pursuant to such laws and regulations.
7. General
a. Agreement; Amendment. This Agreement supersedes all prior and contemporaneous agreements, representations, warranties and understandings and contains the entire agreement between the parties with respect to the software being installed. In the event of any conflict between the terms of this Agreement and those set forth in any TetherView terms and conditions document printed in hard copy which Customer may have received, those of this Agreement will control. No amendment, modification, termination, or waiver of any provision of this Agreement or consent to any departure from this Agreement shall be effective unless it is in writing and signed by a duly authorized representative of each party. No delay or failure on the part of either party in exercising a right or remedy under this Agreement shall operate as a waiver of such right or remedy or any other terms. Customer agrees that any purchase order submitted is for administrative purposes only and that in the event of a conflict between this Agreement and any purchase order, this Agreement shall prevail.
b. Governing Law. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the state of New York (without regards to its conflicts of laws principles). The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act are specifically excluded from application to this Agreement. The original of this Agreement has been written in English. The parties hereto waive any statute, law, or regulation that might provide an alternative law or forum or to have this Agreement written in any language other than English.
c. Assignment. Customer may not assign or otherwise transfer its rights or obligations under this Agreement without receiving the express prior written consent of TetherView. For purposes of this section, transfer of this Agreement pursuant to a consolidation, merger or any other change in control of Customer or transfer or sale of all or substantially all of Customer’s assets or stock shall be deemed to constitute an assignment by Customer of this Agreement. Any purposed assignment in violation of this section shall be null and void. TetherView may assign this Agreement and its rights and obligations hereunder, in its sole discretion. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns.
d. Independent Contractors. The relationship between TetherView and Customer established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be interpreted as creating a partnership, joint venture or agency relationship, or as granting a franchise.
e. Severability and Headings. The provisions of this Agreement are declared to be severable. If any provision of this Agreement is held to be excessively broad as to subject, scope, activity or otherwise so as to be unenforceable at law, such provision shall be constructed by limiting or reducing it so as to be enforceable to the maximum extent compatible with the applicable law as it shall then appear. Headings in this Agreement are included for reference only and shall not constitute a part of this Agreement for any other purpose.
f. Restricted Rights. The Software is provided to United States Government agencies other than the United States Department of Defense (“DOD”) with RESTRICTED RIGHTS and its supporting documentation is provided with LIMITED RIGHTS. Use, duplication, or disclosure by the Government is subject to the restrictions as set forth in subparagraph “C” of the Commercial Computer Software—Restricted Rights clause at FAR 52.227-19. In the event the license is provided to a DOD agency, the government’s rights in Software, supporting Documentation, and technical data are governed by the restrictions in the Technical Data Commercial Items clause at DFARS 252.227-7015 and DFARS 227.7202.
g. Survival. Any provision of this Agreement which anticipates performance or observance subsequent to any termination or expiration of this Agreement (in whole or in part) shall survive any termination or expiration of this Agreement (in whole or in part, as applicable) and continue in full force and effect, including without limitation: Sections 2, 4, 5 and 7.