Veertu End User License Agreement

This document was last updated on 20 Aug 2017.

Please read the following legally binding License Agreement between Veertu and Licensee carefully. By selecting the accept option, or installing, copying or otherwise using the Anka Products, Licensee acknowledges that Licensee has read, understands, and agrees to be bound by the terms and conditions of this License Agreement, including without limitation the terms and conditions of documents and policies which are incorporated herein by reference.

If Licensee does not agree to the terms and conditions of this License Agreement, Licensee is not authorized to install or otherwise use the Products for any purpose whatsoever.

Where a reseller, service provider, consultant, contractor or other party downloads, installs, manages or otherwise uses the Products on Licensee’s behalf, such party will be deemed to be Licensee’s agent and (i) Licensee will be deemed to have accepted all of the terms and conditions of this License Agreement, and (ii) to the extent permitted by applicable law, Licensee, not Veertu, shall be responsible for the acts or omissions of such party in relation to its management or use of the Products on Licensee’s behalf.

NOW IT IS AGREED as follows:

1. DEFINITIONS

1.1 ‘Affiliates’ means, with respect to each party, entities that control, are controlled by, or are under common control with such party. For the purposes of this definition, “control” means the beneficial ownership of more than fifty per cent (50%) of the voting power or equity in an entity.

1.2 ‘Computer’ means any device or computing environment which benefits from the Licensed Anka Product (for example but without limitation, workstations, personal computers, laptops). There is no requirement for the computing hardware to be owned by the Licensee.

1.3 ‘Documentation’ means the product information (whether electronic or printed) published by Veertu for each Product.

1.4 ‘Fee’ means the fee payable for the Product, enhanced support package, Maintenance subscription, and/or extended Maintenance subscription.

1.5 ‘License Agreement’ means this Veertu license agreement and the Schedule.

1.6 ‘License Entitlement’ has the meaning in Clause 3.2 below.

1.7 ‘Licensed Products’ means all or each (as the context so allows) of those software programs which are listed on the Schedule and any of the Upgrades and Updates to those programs, but excluding any third party software as described in Clause 9.

1.8 ‘Licensee’ means the person or entity which has been granted license rights under this License Agreement and ‘Licensee’s’ means belonging to, pertaining to or engaged by Licensee, whether on a temporary basis or otherwise.

1.9 ‘Maintenance’ means collectively Upgrades and/or Updates (where applicable to the Product).

1.10 ‘Outsourced Provider’ means a third party to whom Licensee or Licensee’s Affiliates have outsourced their information technology functions.

1.11 ‘Partner’ means a reseller, distributor or other third parties from which Licensee obtains Veertu Products.

1.12 ‘Product’ means the Licensed Product, as applicable.

1.13 ‘Product Term’ has the meaning set out in Clause 3.1 of this License Agreement.

1.14 “Sanctions and Export Control Laws” means any law, regulation, statute, prohibition, or wider measure applicable to Products and/or to either party relating to the adoption, application, implementation, and enforcement of economic sanctions, export controls, trade embargoes or any other restrictive measures.

1.15 ‘Schedule’ means the order confirmation or license certificate issued by Veertu which details the Product(s) licensed by Licensee and corresponding Product Term, License Entitlement and license credentials, and which forms part of this License Agreement.

1.16 ‘Node’ means a Computer upon which the Licensed Product is installed.

1.17 ‘Veertu’ means Veertu Inc. with its registered offices at 3260 Hillview Ave, Palo Alto, CA – 94304, USA.

1.18 ‘Upgrade’ means any enhancement or improvement to the functionality of the Product, Product version or Product feature made available to Licensee by Veertu at its sole discretion from time to time, but excluding any software and/or upgrades marketed and licensed by Veertu for a separate Fee.

1.19 ‘User’ means an employee, consultant or other individuals who benefits from the Product licensed to Licensee.

2. INTELLECTUAL PROPERTY RIGHTS AND OWNERSHIP

The Products, including without limitation all know-how, concepts, logic and specifications, are proprietary to Veertu and its licensors and are protected throughout the world by copyright and other intellectual property rights. Licensee hereby agrees not to remove any product identification or notices of proprietary restrictions. Further, Licensee hereby acknowledges and agrees that the right, title and interest in the Products and in any modifications made by Licensee to the Products, as provided for below in this License Agreement, is retained by Veertu. No license, right or interest in Veertu’s logos or trademarks is granted to Licensee under this License Agreement.  Licensed Products are licensed, not sold.  Except as expressly stated in this License Agreement, no license or right is granted directly or by implication, inducement, estoppel, or otherwise.

3. RIGHTS AND RESTRICTIONS

3.1 Term. 

3.1.1 This License Agreement is effective from the moment of acceptance as described in the first paragraph of this License Agreement and shall remain in force until the termination of this License Agreement in accordance with the terms and conditions herein.

3.1.2 Unless this License Agreement is terminated earlier (i) the Product Term for fixed term subscription-based Licensed Products, and support packages shall commence on the start date and end on the expiry date noted on the Schedule.

3.1.3 In consideration of the payment of the Fee by Licensee and receipt of the corresponding payment by Veertu, Veertu hereby grants to Licensee a non-exclusive right to use the Products for their respective Product Term subject to the terms and conditions contained within this License Agreement.

3.2 License Entitlement and Usage.

The Schedule specifies the number of applicable units that the Licensee has ordered for each Product (the “License Entitlement”). The Licensee’s actual usage may not exceed the License Entitlement at any time or under any circumstances. If Licensee wishes to increase its actual usage, Licensee must first purchase the corresponding additional License Entitlement. 3.3 Rights. Licensee is permitted to:

3.3.1 use the Products for the internal business purposes of Licensee and its Affiliates;

3.4 Restrictions. Licensee is not permitted to:

3.4.1 modify or translate the Products (i) except as necessary to configure the Licensed Products using the menus, filters, options and tools provided for such purposes and contained in the Product, and (ii) in relation to the Documentation, except as necessary to produce and adapt manuals and/or other documentation for Licensee’s internal business purposes;

3.4.2 reverse engineer (except for lib fuse model), disassemble or decompile the Products or any portion thereof or otherwise attempt to derive or determine the source code or the logic therein except to the extent that such restriction is prohibited by applicable law;

3.4.3 except to the extent expressly stated otherwise in this License Agreement, use Products for which Licensee has not paid and Veertu has not received the applicable Fees;

3.4.4 sub-license, rent, sell, lease, distribute, transfer, transmit, embed, provide access to, or otherwise use the Products for the benefit of third parties as part of a service bureau arrangement or otherwise, except as expressly provided under this License Agreement and/or unless Licensee enters into a separate agreement with Veertu for such purposes;

3.4.5 use the Products other than in the course of business

3.4.6 use the Products in or in association with safety critical applications where the failure of the Products to perform can reasonably be expected to result in a physical injury, or in loss of property, or loss of life. Any such use is entirely at Licensee’s own risk, and Licensee agrees to hold Veertu harmless from and hereby releases Veertu from any and all claims or losses relating to such unauthorized use; and/or

3.4.7 use the Products for the purposes of competing with Veertu, including without limitation competitive intelligence (except to the extent that this restriction is prohibited by applicable law).

3.5 Permitted Third Party Usage.

Licensee may permit its Affiliates and Outsourced Providers to use the Products provided that (i) Licensee shall provide prior written notice to Veertu, (ii) the Affiliates and Outsourced Providers shall only use and/or operate the Products for the internal business purposes of Licensee and its Affiliates, (iii) the actual usage of the Products by Licensee, Licensee’s Affiliates and Outsourced Providers in aggregate shall not exceed the License Entitlement purchased by the Licensee, (iv) Licensee shall ensure that its Affiliates and the Outsourced Providers are aware of and comply with the terms and conditions of this License Agreement; and, (v) Licensee shall be responsible for, and hold Veertu harmless from, the acts and omissions of its Affiliates and Outsourced Providers relating to use of the Products.

3.6 Licensee acknowledges and agrees that (i) it is only entitled to use the Products listed in the Schedule, and (ii) it has not based its purchasing decision on the future availability of any new products and/or additional features, components or versions of the Products, nor on any oral or written public comments made by Veertu regarding future functionality or features.

3.7 Licensee is solely responsible for its compliance with the applicable terms and conditions of any third party agreements for hardware, software, connectivity and any other third party products and services.

4. SUPPORT

4.1 Support includes standard/base level technical support as specified in the schedule. Enhanced technical support packages are available subject to payment by Licensee and receipt by Veertu of the corresponding Fee.

4.2 Veertu reserves the right in its discretion to limit the number of Users who may contact Veertu technical support.

4.3 Any custom or sample code, files or scripts (“Fixes”) provided by Veertu as part of the provision of technical support which do not form part of its standard commercial offering may only be used in conjunction with the Product for which they were developed, during the relevant Product Term, and subject to the provisions of Clause 14.1.3.

5. INDEMNITY

5.1 Veertu shall defend, indemnify, and hold Licensee harmless from any claim or proceeding alleging that Licensee’s use or possession of the Licensed Product in accordance with the terms and conditions of this License Agreement infringes any third party patent, trademark or copyright.

5.2 Licensee shall not be entitled to the benefit of the indemnity in Clause 5.1 if (i) Licensee fails to notify Veertu in writing within ten (10) days of Licensee being notified of any such claim or proceeding, (ii) Licensee does not at the written request of Veertu immediately cease to use or possess the Product on any such claim being made, (iii) Licensee, without the prior written consent of Veertu, acknowledges the validity of or takes any action which might impair the ability of Veertu to contest the claim or proceedings if it so elects, (iv) the infringement arises due to modification of the Product by anyone other than Veertu, use of the Product other than in accordance with the Documentation, and the infringement would not have arisen without such use or modification, or (v) the claim is raised based on use or possession in a country that is not a party to the World Intellectual Property Organization (WIPO) treaties on patents, trademarks and copyrights.

5.3 If any such claim or proceeding referred to in Clause 5.1 is made against Licensee, Veertu alone shall have the right (in its sole discretion):

5.3.1 to defend and/or settle any such third party claim or proceedings and/or to initiate counter-proceedings, and to require Licensee to join and co-operate with the defense, settlement and/or counter proceedings at Veertu’s reasonable cost. If Veertu elects to not assume the defense of, settle such claims and/or initiate counter-proceedings, the Licensee may proceed with defending the claim in good faith and Veertu will reimburse all claims, damages, charges, expenses and liabilities (including reasonable counsel fees and costs) finally awarded or agreed to in a monetary settlement. Veertu shall have the right to approve Licensee’s chosen counsel under this Clause 5.3.1, such approval not to be unreasonably withheld.

5.3.2 to (i) procure a license so that Licensee’s use, possession and distribution of the Product in accordance with the terms and conditions of this License Agreement does not infringe any third party patents, trademarks or copyrights, or (ii) modify or replace the Product with a functionally equivalent Product so that it no longer infringes a third party’s patents, trademarks or copyrights. If Veertu cannot achieve Clause 5.3.2 (i) or (ii) above on a commercially reasonable basis, Veertu may terminate the license to use the Product upon notice to Licensee and provide a pro rata refund of Fees paid for such Product which relates to the period after the date of termination in the case of subscription term Products.

5.4 CLAUSES 5.1, 5.2 AND 5.3 SET OUT LICENSEE’S SOLE REMEDY AND THE WHOLE LIABILITY OF VEERTU IN THE EVENT THAT THE PRODUCTS INFRINGE THE PATENTS, TRADEMARKS, COPYRIGHTS OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. LICENSEE WILL IN ANY EVENT MITIGATE LICENSEE’S LOSSES AS FAR AS POSSIBLE.

6. DISCLAIMER OF WARRANTIES

6.1 VEERTU AND ANY OF ITS THIRD-PARTY LICENSORS AND SUPPLIERS AND THE CONTRIBUTORS OF CERTAIN INCLUDED SOFTWARE MAKE NO WARRANTIES, CONDITIONS, UNDERTAKINGS OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, IN RELATION TO THE PRODUCT OR ANY THIRD PARTY SOFTWARE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING FROM COURSE OF DEALING, USAGE OR TRADE. SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO LICENSEE AND LICENSEE MAY HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE OR BY JURISDICTION.

6.2 WITHOUT LIMITATION TO THE FOREGOING, VEERTU DOES NOT WARRANT OR REPRESENT THAT (i) THE PRODUCT WILL MEET LICENSEE’S REQUIREMENTS, (ii) THE OPERATION OF THE PRODUCT WILL BE ERROR FREE OR UNINTERRUPTED.

6.3 LICENSEE FURTHER ACKNOWLEDGES AND AGREES THAT LICENSEE SHALL BE SOLELY RESPONSIBLE FOR PROPER BACK-UP OF ALL OF ITS DATA AND THAT LICENSEE SHALL TAKE APPROPRIATE MEASURES TO PROTECT SUCH DATA. VEERTU AND ITS THIRD PARTY LICENSORS ASSUME NO LIABILITY OR RESPONSIBILITY WHATSOEVER IF DATA IS LOST OR CORRUPTED.

7. LIMITATION OF LIABILITY

7.1 LICENSEE USES THE PRODUCT AT LICENSEE’S OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL VEERTU OR ANY OF ITS THIRD-PARTY LICENSORS AND SUPPLIERS OR THE CONTRIBUTORS OF CERTAIN INCLUDED SOFTWARE BE LIABLE TO LICENSEE FOR, OR TO THOSE CLAIMING THROUGH LICENSEE FOR, ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGE OR LOSS OF ANY KIND INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF CONTRACTS, BUSINESS INTERRUPTIONS, LOSS OF OR CORRUPTION OF DATA HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT OR TORT, INCLUDING WITHOUT LIMITATION NEGLIGENCE, INCLUDING WITHOUT LIMITATION ANY LOSS OR DAMAGE RELATED TO ANY THIRD PARTY SOFTWARE EVEN IF VEERTU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS IN THIS CLAUSE 7.1 SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY.

7.2 IF ANY LIMITATION, EXCLUSION, DISCLAIMER OR OTHER PROVISION CONTAINED IN THIS LICENSE AGREEMENT IS HELD TO BE INVALID FOR ANY REASON BY A COURT OF COMPETENT JURISDICTION AND VEERTU BECOMES LIABLE THEREBY FOR LOSS OR DAMAGE THAT MAY LAWFULLY BE LIMITED, SUCH LIABILITY WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR OTHERWISE, WILL NOT EXCEED THE LESSER OF (i) THE FEE PAID BY LICENSEE AND (ii) VEERTU’S LIST PRICE FOR THE PRODUCT.

7.3 IN NO EVENT SHALL VEERTU’S AGGREGATE LIABILITY TO LICENSEE ARISING OUT OF OR IN CONNECTION WITH THIS LICENSE AGREEMENT, FROM ALL CAUSES OF ACTION AND THEORIES OF LIABILITY (INCLUDING WITHOUT LIMITATION NEGLIGENCE), EXCEED THE LESSER OF (i) THE FEE PAID BY LICENSEE AND (ii) VEERTU’S LIST PRICE FOR THE PRODUCT.

7.4 VEERTU DOES NOT LIMIT OR EXCLUDE ITS LIABILITY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE, (ii) FRAUDULENT MISREPRESENTATION, OR (iii) ANY OTHER LIABILITY TO THE EXTENT THAT SUCH LIABILITY CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW.

8. PRODUCT CHANGES

Licensee acknowledges and agrees that Veertu may vary, update or discontinue Products, Product versions, Product features, Product support, Product Maintenance, and support for third party products (including without limitation operating systems and platforms) from time to time for reasons including but not limited to changes in demand, and technology. Veertu will communicate to the licensee the date(s) of planned. Veertu recommends that the Licensee always uses the latest Product, Product version and/or third party product, as applicable.

9. THIRD PARTY SOFTWARE

The Products may operate or interface with software or other technology that Veertu has the rights to use from third parties(identified in the acknowledgements section), which is not proprietary to Veertu, but which Veertu has the necessary rights to include in the Veertu license to Licensee. Licensee agrees that (a) it will use such third party software in accordance with this License Agreement, (b) no third party licensor makes any warranties, conditions, undertakings or representations of any kind, either express or implied, to Licensee concerning such third party software or the Products themselves, (c) no third party licensor will have any obligation or liability to Licensee as a result of this License Agreement or Licensee’s use of such third party software, (d) the third party licensor is a beneficiary of this License Agreement and accordingly may enforce the terms and conditions herein to the extent necessary to protect its rights in relation to the third party software, and (e) such third party software may be licensed under license terms which grant Licensee additional rights or contain additional restrictions in relation to such materials, beyond those set forth in this License Agreement, and such additional license rights and restrictions are described or linked to in the acknowledgements within the Product itself. For the avoidance of any doubt, such additional rights and/or restrictions apply to the third party software on a standalone basis; nothing in such third party licenses shall affect Licensee’s use of the Licensed Products in accordance with the terms and conditions of this License Agreement.

10. EXPORT CONTROL, ANTI-BRIBERY AND COMPLIANCE WITH APPLICABLE LAWS

10.1 Licensee hereby agrees that (i) it will comply with all applicable Sanctions and Export Control Laws, (ii) it is solely responsible for ensuring that the Product is used, disclosed and/or transported only in accordance with all applicable Sanctions and Export Control Laws.

10.2 Each party warrants that in entering into this License Agreement neither the party nor any of its officers, employees, agents, representatives, contractors, intermediaries or any other person or entity acting on its behalf has taken or will take any action, directly or indirectly, that contravenes (i) the United Kingdom Bribery Act 2010, or (ii) the United States Foreign Corrupt Practices Act 1977, or (iii) any other applicable anti-bribery laws or regulations anywhere in the world.

10.3 Licensee warrants that its use and possession of the Products is and will continue to be in accordance with all other applicable laws and regulations.

10.4 ANY BREACH OR SUSPECTED BREACH OF THIS CLAUSE 10 BY LICENSEE SHALL BE A MATERIAL BREACH INCAPABLE OF REMEDY ENTITLING VEERTU TO TERMINATE THIS AGREEMENT IMMEDIATELY UPON NOTICE TO LICENSEE. In addition, Licensee agrees (to the extent permitted by applicable law, and without waiver of Licensee’s constitutional, statutory, or other immunities, if any) to indemnify and hold Veertu harmless from and against any claim, proceeding, loss, liability, cost or damage suffered or incurred by Veertu resulting from or related to Licensee’s violation of this Clause 11.

11. TERMINATION

11.1 This License Agreement and Licensee’s rights under it will terminate immediately if: (i) Licensee fails to pay the Fee to Veertu or the Partner (as applicable) in accordance with the agreed payment terms; or (ii) Veertu does not receive payment from the relevant Partner for the Products and packages provided to Licensee, or (iii) Licensee breaches any of the terms and conditions of this License Agreement.

11.2 Subject to Clause 11.4, Licensee may terminate the license for the applicable Licensed Product(s) at any time by uninstalling Licensed Product.

11.3 Licensee’s right to use and access the Products will automatically terminate on expiry of the applicable Product Term or this License Agreement (whichever is the earlier) unless and until Licensee renews Licensee’s license for the Products.

11.4 Except as expressly set forth herein, all Fees paid or payable are non-refundable to the maximum extent permitted by law.

12. CONFIDENTIALITY AND DATA PROTECTION

12.1 The Licensee may receive or have access to confidential information under or in relation to this License Agreement that is secret and valuable to Veertu and its licensors. Licensee is not entitled to use or disclose that confidential information other than strictly in accordance with the terms and conditions of this License Agreement.

12.2 Licensee acknowledges and agrees that Veertu may directly and remotely communicate with the Products in order to provide technical support, and to collect the following types of information: (i) Products, Product versions, Product features, (ii) Licensee’s customer identification code and company name, and (iii) IP address and/or ID of the machine which returns the above listed information.

12.3 The information collected under Clause 12.2 may be used for the purposes of (i) providing the Products and performing this License Agreement, (ii) verifying Licensee’s compliance with the License Entitlement, (iii) evaluating and improving the performance of the Products, (iv) planning development roadmaps and product lifecycle strategies, (v) issuing alerts and notices to Licensee about incidents and product life cycle changes which affect the Products being used by Licensee.

12.4 Veertu may also require the Licensee’s contact details and (where applicable) payment information for the purposes of (i) providing technical support, (ii) billing, (iii) verifying Licensee’s credentials and License Entitlement, (iv) issuing license expiry and renewal notices, (v) carrying out compliance checks for export and sanction control purposes, and (vi) providing account management.

12.5 Licensee expressly gives Veertu permission to (i) include and publish Licensee’s name and logo on lists of Veertu’s customers, and (ii) send promotional emails to Licensee to provide information about other Veertu products and services. If Licensee does not wish to give Veertu permission for the uses described in this Clause 12.5, Licensee may notify Veertu by emailing info@veertu.com, specifying which permission is not granted.

12.6 As a global organization, the Affiliates, subcontractors and third party licensors of Veertu may be located anywhere in the world. Veertu will process any personal data in accordance with the provisions of the EU Directive 95/46 EC and the Privacy Policy.

12.7 By installing or using the Product or accepting this License Agreement, Licensee expressly confirms its consent to the use of data and information as set forth herein and in the Privacy Policy, and Licensee further warrants that it has obtained all necessary consents and provided all necessary notifications to share such data and information with Veertu for the purposes described above.

13. GENERAL

13.1 Any Partner from whom Licensee may have purchased the Product is not appointed by Veertu as its servant or agent. No such person has any authority, either express or implied, to enter into any contract or provide any representation, warranty or guarantee to Licensee or any third party or to translate or modify this License Agreement in any way on behalf of Veertu or otherwise to bind Veertu in any way whatsoever.

13.2 Licensee has no obligation to provide Veertu with ideas, suggestions, concepts, or proposals relating to Veertu’s products or business (“Feedback”). However, if Licensee provides Feedback to Veertu, Licensee grants Veertu a non-exclusive, worldwide, royalty-free license that is sub-licensable and transferable to any party, to make, use, sell, have made, offer to sell, import, reproduce, publicly display, distribute, modify, and publicly perform the Feedback, without any reference, obligation, or remuneration to Licensee.  All Feedback shall be deemed non-confidential to Licensee.  Licensee shall not provide to Veertu any Feedback it has reason to believe is or may be subject to the intellectual property claims or rights of a third party.

   13.3 (i) Self-Audits. To help manage Licensee’s use of the Products and Licensee’s compliance with this Agreement, Licensee agrees to perform a self-audit upon ten (10) working days’ prior written notice from Veertu, calculating the number of Users, Computers, Servers or other applicable units benefiting from the Products. If Licensee’s self-audit reveals that Licensee’s actual usage exceeds the License Entitlement, Licensee shall procure the additional licenses required from Veertu or its preferred Partner. (ii) Formal Audits. If Licensee does not perform a self-audit upon request from Veertu, or if Veertu has reason to doubt the results of such self-audit, upon prior written notice to Licensee, Licensee shall permit Veertu or an independent certified accountant appointed by Veertu to access Licensee’s premises and inspect Licensee’s books of account and records at any time during normal business hours for the purpose of inspecting, auditing, verifying or monitoring the manner and performance of Licensee’s obligations under this License Agreement, including without limitation the payment of all applicable license fees. Any such audit shall minimize the disruption to Licensee’s business operations.  Veertu shall not be able to exercise this right more than once in each calendar year. If an audit reveals that Licensee has underpaid fees to Veertu, Licensee shall be invoiced for and shall pay to Veertu or the Partner (as applicable) within thirty (30) days of the date of invoice an amount equal to the shortfall between the fees due and those paid by Licensee. If the amount of the underpayment exceeds five percent (5%) of the fees due or the audit reveals a violation of any license restrictions pursuant to this License Agreement then, without prejudice to Veertu’s other rights and remedies, Licensee shall also pay Veertu’s reasonable costs of conducting the audit.

13.4 Veertu may in its sole discretion assign, novate, sub-contract or otherwise transfer any of its rights or obligations hereunder.

13.5 Veertu may amend the terms and conditions of this License Agreement and/or any documents and policies referenced herein at any time, including without limitation by posting revised terms and conditions on its website at http://www.veertu.com and/or the location of such document or policy. Such amended terms and conditions shall be binding upon Licensee with effect from the date of such change. For the avoidance of doubt, such amended terms and conditions shall supersede any prior version of the License Agreement which may have been embedded in or packaged with the Product itself.

13.6 Failure by either party to enforce any particular term or condition of this License Agreement shall not be construed as a waiver of any of its rights under it.

13.7 The illegality, invalidity or unenforceability of any part of this License Agreement will not affect the legality, validity or enforceability of the remainder.

13.8 If Licensee and Veertu have signed a separate written agreement covering the licensing and use of the Product, the terms and conditions of such signed agreement shall take precedence over any conflicting terms and conditions of this License Agreement. Otherwise this License Agreement, the Schedule and the documents and policies referenced herein constitute the entire agreement between the parties relating to the licensing and use of the Product and supersede any other oral or written communications, agreements or representations with respect to the Product, except for any oral or written communications, agreements or representations made fraudulently. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.

13.9 If there are any inconsistencies between the English language version of this License Agreement and any translated version, the English language version shall prevail.

13.10 A person who is not a party to this License Agreement has no right to enforce any term or condition of this License Agreement and the parties to this License Agreement do not intend that any third-party rights are created by this License Agreement.

13.11 This License Agreement and any dispute or claim arising out of or in connection with it, including without limitation non-contractual disputes or claims, shall be governed by and construed in accordance with the laws of the State of California, U.S.A., without regard to its conflict of laws principles. The federal and state courts of the State of California, U.S.A. shall have exclusive jurisdiction to determine any dispute or claim which may arise out of, under, or in connection with this License Agreement.  The parties waive any right to a jury trial in any litigation arising out of or in connection with this License Agreement; and

13.12 Nothing in Clause 13.11 shall limit the right of Veertu to initiate proceedings against Licensee in any court of competent jurisdiction where deemed necessary by Veertu to (i) protect its intellectual property rights, (ii) protect its confidential information, and/or (iii) recover overdue payments.

13.12 Any notices required to be given to Veertu or any questions concerning this License Agreement should be addressed to info@veertu.com.

13.13  The following clauses shall survive any termination or expiration of this License Agreement: 2, 6, 7, 10, 12.1, 13, 14.1.4, and 14.1.5.

14. ADDITIONAL TERMS AND CONDITIONS The first part of this License Agreement includes general terms and conditions applicable to all Products. The additional terms and conditions in this Clause 14 below apply only to the Products referenced in each section. 14.1 Free Trials, Fixes, Technical Previews, Beta Testing and Free Products.

14.1.1 If Veertu permits the Licensee to conduct a free trial of a commercially available Product (the “30 Day Free Trial”), the Licensee may use the Product free of charge for evaluation purposes only for a maximum of 30 days, or such other duration as specified by Veertu in writing at its sole discretion (the “Trial Period”). If the Licensee does not purchase the Product, the rights to use the Product will terminate immediately upon expiry of the Trial Period.

14.1.2 Veertu makes certain Products available for use free of charge (“Free”). Such Free Product may only be used for the express purposes permitted by Veertu as identified in the product documentation. The Product Term applicable to a Free Product shall continue until (i) Veertu withdraws the Free Product, or (ii) Veertu notifies the Licensee that it is no longer permitted to use the Free Product. No technical support is included with, or provided for, Free products.

14.1.3 If Veertu provides Licensee with a Product for technical preview or beta testing purposes (a “Preview Product”), Licensee may use the Preview Product for evaluation purposes for the period specified by Veertu (the “Test Period”). Licensee shall test the Preview Product in accordance with any conditions specified in the readme file for the software and/or any accompanying Documentation and shall gather and report test data, and other Feedback to Veertu as set forth in Clause 13.2. Licensee’s right to use the Preview Product shall terminate upon expiry of the Test Period. Veertu does not warrant that it will release a commercial version of the Preview Product, or that a commercial version will contain the same or similar features as the Preview Product. Any Preview Product and accompanying documentation shall be considered Veertu’s confidential information as set forth in Clause 12.1.

14.1.4 Clause 5 shall not apply to Free Trials, Fixes, Free Product and Preview Products. FREE TRIAL PRODUCTS, FREE TOOLS AND PREVIEW PRODUCTS ARE PROVIDED “AS IS” AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW (i) VEERTU MAKES NO WARRANTIES, CONDITIONS, REPRESENTATIONS OR UNDERTAKINGS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RELATION TO SUCH PRODUCTS, (ii) IN NO EVENT SHALL VEERTU BE LIABLE TO LICENSEE OR TO THOSE CLAIMING THROUGH LICENSEE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGE OR LOSS OF ANY KIND INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF CONTRACTS, BUSINESS INTERRUPTIONS, LOSS OF OR CORRUPTION OF INFORMATION OR DATA HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT OR TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), EVEN IF VEERTU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE LIMITATIONS IN THIS CLAUSE 14.1.4 SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY.

14.1.5 Clause 7 shall not apply to Free Trials, Fixes, Free Product and Preview Products.