Grey Matter End-User License Agreement
Legal Requirements pertaining to Grey Matter licensing.
END USER LICENSE AGREEMENT (EULA)
This End User License Agreement (EULA), together with any Schedules and Exhibits hereto (the “Agreement”), is made effective XXXXX 2021 (the“Effective Date”) by and between Decipher Technology Studios, LLC (“Decipher”) a Virginia company with a principal place of business at 106 North Lee St, Floor 2, Alexandria, VA 22314, and XXXX(“Customer”). Each of Decipher and Customer shall be known as a “Party”, and collectively shall be the “Parties”. This agreement describes your rights and the conditions upon which you may use the Grey Matter software. Review the entire agreement, including any supplemental license terms that accompany the software and any linked terms, because all of the terms are important and together create this agreement that applies to Customer use of Grey Matter.
WHEREAS, Decipher owns, and offers licenses and services related to, encryption and data and systems management software; and WHEREAS, Customer seeks to acquire the right to obtain such services and software from Decipher; and WHEREAS, Decipher agrees to provide such services and software to Customer subject to the terms and conditions of this Agreement. Therefore, the Parties agree as follows:
1.1 “Documentation” shall mean the written instructions, or descriptions, or technical usage requirements or architecture/technical descriptions accompanying the Products to assist in the use and protection of the Products.
1.2 “Enterprise Support licenses” shall have the meaning in the applicable Schedule.
1.3 “Grey Matter Data node license” shall have the meaning in the applicable Schedule.
1.4 “Grey Matter Fabric node license” shall have the meaning in the applicable Schedule.
1.5 “Grey Matter JVM Starter Kits” shall have the meaning in the applicable Schedule.
1.6 “Grey Matter Security node license” shall have the meaning in the applicable Schedule.
1.7 “Microservice node license” shall have the meaning in the applicable Schedule.
1.8 “Product” means Decipher’s proprietary commercial off-the-shelf software product(s) specified in the Agreement, or applicable Schedule or provided in connection with this Agreement, and any helpers, extensions, plug-ins, and add-ons, in any format, including any improvements, modifications, derivative works, patches, updates, and upgrades thereto that Decipher provides to Customer or that is developed in connection with this Agreement.
1.9 “Professional Services” shall have the meaning in the applicable Schedule.
1.10 “Schedule” shall mean any and all Exhibits, SOWs and other written supplementary documents appended to the Agreement that describe the Products and Services to be delivered to Customer, and are governed by the terms of the Agreement.
1.11 “Services” shall have the meaning in the applicable Schedule. Any capitalized terms used in any Schedule but not otherwise defined therein, shall have the meaning as defined in this Agreement. Schedules are to be read together with this Agreement. Any conflict between this Agreement and any Schedule will be resolved in favor of the Schedule and any conflict between Schedules covering the same subject matter will be resolved in favor of the most recent Schedule.
- Grant of Limited License.
Subject to Customer’s continued and full compliance with all of the terms and conditions of this Agreement, Decipher hereby grants to Customer a non-transferable, non-assignable, non-exclusive, limited license, without any right to sublicense, during the Term (as defined below), to install, execute and use the Products solely for its internal purposes, and only (i) in accordance with the Documentation; and (ii) pursuant to the descriptions and details in any Schedules. Unless otherwise agreed in writing by Decipher, this license grant does not extend or confer any usage or license rights to the Products or Documentation to any affiliates of Customer.
Except for the limited license rights expressly provided herein, Decipher retains all rights, title and interest in and to the Products, Documentation and any other related documentation or materials provided by Decipher hereunder (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual or industrial property rights embodied in any of the foregoing). Customer acknowledges that it is obtaining only a limited license right to the Products, notwithstanding any reference to the terms “purchase” or “customer” herein. The Products are licensed and not sold, and no ownership rights are being conveyed to Customer under this Agreement. Customer will maintain and display the copyright notice and any other notices or product identifications that appear on or in any Products and any associated media. As between the parties, Decipher will own all intellectual property rights in the Products, Services and Documentation and anything else created pursuant to this Agreement, including but not limited to all copies, improvements, modifications and derivative works thereof, related documentation and materials.
Customer will not (and will not allow any third party to): (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms of any Product; (ii) provide, lease, lend, use for timesharing or service bureau purposes or otherwise use or allow others to use a Product for the benefit of any third party; (iii) list or otherwise display or copy any object code of any Product; (iv) copy any Product (or component thereof), except that Customer may make a reasonable number of copies of the Products and/or Documentation solely for backup, archival or disaster recovery purposes, provided that Customer notifies Decipher in advance of the number of copies made and/or maintained for such backup, archival or disaster recovery purposes, and the location of where those copies are located whether on physical media or stored virtually; (v) develop any improvement, modification or derivative work thereof or include a portion thereof in any other equipment or item; (vi) allow the transfer, transmission, export, or re-export of any Product (or any portion thereof), or Documentation, or any Decipher technical data; or (vii) perform benchmark tests without the prior written consent of Decipher (any results of such permitted benchmark testing shall be deemed Confidential Information of Decipher). Notwithstanding these restrictions, nothing shall prevent Customer from development of software that interfaces with Decipher’s public APIs. Periodically, Decipher may request that Customer provide an accurate accounting of the number and purposes of nodes that Customer is currently using. Customer shall provide this information in writing within ten (10) business days of Decipher’s request. All the limitations and restrictions on Products in this Agreement also apply to Documentation. Notwithstanding the foregoing, or any statement to the contrary herein, portions of the Product may be provided with notices and open source licenses from such communities and third parties that govern the use of those portions, and any licenses granted hereunder do not alter any rights and obligations Customer may have under such open source licenses; however, the disclaimer of warranty and limitation of liability provisions in this Agreement will apply to all such software in this Product distribution.
5.1 To the extent allowed under applicable law, Customer shall treat as confidential all Confidential Information (as defined below) of Decipher, and shall not use such Confidential Information except to exercise its rights and perform its obligations herein, and shall not disclose such Confidential Information to any third party other than disclosure on a need to know basis to a party’s own advisors, attorneys, and/or bankers each of whom is subject to obligations of confidentiality at least as restrictive as those stated herein. Without limiting the foregoing, Customer shall use at least the same degree of care as it uses to prevent the disclosure of its own confidential information of like importance, but in no event less than reasonable care. Customer shall promptly notify Decipher of any actual or
suspected misuse or unauthorized disclosure of Decipher’s Confidential Information.
5.2 “Confidential Information ” shall mean (i) Products, (ii) Documentation and (iii) any other business, technical or engineering information provided by Decipher to Customer, including third party information, disclosed by Decipher to Customer, in any form and marked or otherwise designated as “Confidential” or “Proprietary” or in any form and by the nature of its disclosure would be understood by a reasonable person to be confidential and proprietary.
5.3 Notwithstanding the foregoing, Confidential Information shall not include any information that (a) is or becomes part of the public domain through no act or omission of Customer in breach of this Agreement, (b) is known to Customer at the time of disclosure without an obligation to keep it confidential, (c) becomes rightfully disclosed to Customer from another source without restriction on disclosure or use, or (d) Customer can document by written evidence that such information is independently developed by Customer without the use of or any reference or access to Confidential Information, by persons who did not have access to the relevant Confidential Information.
5.4 Customer is responsible for any breaches of this Section by its employees and agents.
5.5 Customer’s obligations with respect to Decipher’s Confidential Information survives termination of this Agreement for a period of five (5) years; provided, that Customer’s obligations hereunder shall survive and continue in perpetuity after termination with respect to any Confidential Information that is a trade secret under applicable law.
5.6 Each Party hereby agrees that, in the event of any breach by either Party of its obligations to the other Party under this Article 5, the other Party may suffer irrevocable harm and shall therefore have the right to seek injunctive and other equitable relief.
- Payment and Delivery.
Customer shall pay to Decipher the total amount of the fees set forth in the Schedule. All payments shall be made in the currency set forth on the invoice via check or wire transfer to an account designated by Decipher. All fees are due within thirty (30) days after the date of issuance of Decipher’s invoice. If any amount payable by Customer to Decipher is not paid when due, such overdue amount shall bear interest at a rate equal to one-and-a-half percent (1
½%) per month (a “Late Fee”). In addition, Customer shall reimburse Decipher for all costs incurred by Decipher, including reasonable attorneys’ fees and court costs, in connection with the collection of any delinquent payments or other amount due to Decipher. Products are deemed delivered upon Decipher’s initial e-mail communication providing Customer with access to Decipher’s electronic support portal, through which Customer may download Products and Documentation.
- Support Services.
Subject to the payment of the applicable fees set forth in the Schedule as they become due, Decipher shall use commercially reasonable efforts to provide Customer with the Enterprise Support, Professional Services and Product upgrades in accordance with and subject to Decipher’s standard support services terms and conditions (“Support Services”) for the period of time specified in the Schedule (“Support Services Period”). If Customer elects to renew Support Services, Customer must renew Support Services for all nodes that Customer has licensed. If Customer fails to pay the by the end of the then-current Support Services Period, Customer shall be deemed to have cancelled Support Services and Decipher shall no longer provide Customer with Support Services. Customer may reinstate Support Services after a period in which it was cancelled, provided (i) Decipher then offers Support Services, and (ii) in order to receive Product updates which Customer had not received due to cancellation, Customer pays Decipher the current year’s Support Services fee and any Support Services fees that would have been payable during the period during which Support Services were cancelled.
- Professional Services.
In addition to any Support Services and Training discussed above, upon payment of the applicable fees set in the Schedule, Decipher will provide Customer with the number of Professional Service Hours specified thereon (“Professional Services”), if any such hours are specified. From time to time at Customer’s request, and upon written agreement of the parties, Decipher shall provide additional services with respect to Customer’s use of the Products.
- Force Majeure Events.
“Force Majeure Event” shall mean, with respect to either Party, any event that is outside the control of such party that prevents such Party from performing its obligations under this Agreement, including, without limitation: acts of God; wars; blockades; embargoes; riots; civil disturbances; acts of terrorism; fires; explosions; weather- or climate-related interruptions; earthquakes and other natural disasters; widespread shortages of labor or materials; internet infrastructure, power supply or telecommunications failures or outages; labor disputes; market closures and prohibitions or restrictions of any governmental or regulatory authority. Neither party shall be liable for any breach of its obligations under this Agreement resulting from the occurrence of a Force Majeure Event, provided that the occurrence
of a Force Majeure Event shall not discharge, excuse, limit or in any way impair the obligation of Customer to pay Decipher amounts due to Decipher. Each Party shall give the other party prompt written notice of the occurrence of any Force Majeure Event that prevents such Party from performing its obligations under this Agreement. Each Party shall use commercially reasonable efforts to mitigate the effects of any Force Majeure Event.
- Term and Termination.
10.1 Term of Agreement. The term of this Agreement shall commence on the Effective Date and end on the termination of this Agreement pursuant to this Agreement. The termination of this Agreement shall necessarily terminate all licenses to the Products and receipt of Professional Services provided by Decipher to Customer.
10.2 Termination or Suspension by Decipher. (a) Decipher may terminate this Agreement immediately upon notice to Customer if Customer becomes insolvent, files a petition in bankruptcy, becomes subject to an insolvency proceeding or seeks relief from creditors
under any bankruptcy or reorganization law. (b) Decipher may terminate this Agreement: (i) on written notice to Customer if Customer fails to pay when due any fee or other amount due to Decipher, and such default is not cured by Customer within ten (10) days after receiving written notice of the default from Decipher; or (ii) immediately on written notice to Customer if any representation or warranty of Customer is incorrect in any material respect or Customer fails to perform in any material respect any obligation (other than a payment obligation) to Decipher, and such default is not cured by Customer within thirty (30) days after receiving written notice of the default from Decipher, or Customer breaches its obligations under this Agreement,
10.3 Termination by Customer. Customer may terminate this Agreement on written notice to Decipher if any representation or warranty of Decipher is incorrect in any material respect or Decipher fails to perform in any material respect any obligation to Customer, and such default is not cured by Decipher within thirty (30) days after receiving written notice of the default from Customer.
10.4 Effect of Termination. Upon any termination of this Agreement: (i) Decipher shall cease to provide all Services to Customer and the License shall be cancelled, (ii) Customer shall cease to access all Services or use the Products: and (iii) Customer shall return to Decipher (or certify in writing by an authorized officer of Customer to the satisfaction of Decipher that it has destroyed, erased or purged) all Products. Under no circumstances shall Decipher refund any amount to Customer.
10.5 Termination or expiration does not affect either party’s rights or obligations that accrued prior to the effective date of termination or expiration (including without limitation, payment obligations). Termination is not an exclusive remedy and all other remedies under the law shall remain available.
11.1 Decipher shall indemnify and hold harmless Customer from and against damages, costs, and attorneys’ fees, if any, finally awarded against Customer from any claim of infringement or violation of any U.S. patent, copyright, or trademark asserted against Customer by a third party based upon Customer’s use of the Products in accordance with the terms of this Agreement, provided that Decipher shall have received from Customer: (i) notice of such claim within ten (10) days of Customer receiving notice of such claim and (ii) all reasonable necessary cooperation of Customer.
11.2 If Customer’s use of any of the Products are, or in Decipher’s sole reasonable opinion is likely to be, enjoined due to the type of infringement specified above, or if required by settlement, Decipher may, in its sole discretion: (a) substitute for the Products substantially functionally similar programs and documentation; (b) procure for Customer the right to continue using the Products; or (c) if Decipher reasonably determines that options (a) and (b) are commercially impracticable, terminate this Agreement and refund to Customer for Grey Matter Enterprise Support licenses, the license fee paid hereunder by Customer as reduced to reflect a four year, straight-line amortization from the date on which such Products were first delivered by Decipher, refund to Customer a pro-rated portion of the license fee paid that reflects the remaining portion of the Term at the time of termination. The foregoing indemnification obligation of Decipher shall not apply: (1) if the Products are modified by any party other than Decipher, but only to the extent the alleged infringement would not have occurred but for such modification; (2) if the Products are modified by Decipher at the request of Customer, but only to the extent the alleged infringement would not have occurred but for such modification; (3) if the Products are combined with other non-Decipher products or processes not authorized by Decipher, but only to the extent the alleged infringement would not have occurred but for such combination; (4) to any unauthorized use of the Products; (5) to any superseded release of the Products if the infringement would have been avoided by the use of a current release of the Products that Decipher has provided to Customer prior to the date of the alleged infringement; or (6) to any third party software code contained within the Products. THIS SECTION SETS FORTH DECIPHER’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
- Decipher Limited Warranty and Disclaimer.
12.1 Warranty. Decipher warrants for a period of ninety (90) days from the date the Products were initially delivered by Decipher (the “Warranty Period”), the Products will substantially conform to Decipher’s then current Documentation for such Products. This warranty covers only those problems reported to Decipher in writing (including a test case or procedure that recreates the failure and by full documentation of the failure) during the Warranty Period. In the event of a material failure of the Products to perform substantially in accordance with the specifications during the Warranty Period (“Defect”), Decipher shall use reasonable efforts to correct the Defect or provide a suitable work around as soon as reasonably practical after receipt of Customer’s written notice as specified above. A Defect shall not include any defect or failure attributable to improper installation, operation, misuse or abuse of the Products or any modification thereof by any person other than Decipher. If Decipher has not remedied the Defect within thirty (30) days of its receipt of Customer’s written notice, Customer may give Decipher written notice of termination of this Agreement, which termination will be effective ten (10) days after Decipher’s receipt of the notice, unless Decipher is able to remedy the Defect prior to the effective date of termination. In the event of the termination of this Agreement pursuant to Customer’s exercise of its right under this Section, Customer shall be entitled to receive from Decipher, as its sole and exclusive remedy, a refund of all amounts paid to Decipher hereunder. DISCLAIMER OF WARRANTY. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, OR AS OTHERWISE PROVIDED BY LAW, DECIPHER MAKES NO WARRANTIES WITH RESPECT TO THE PRODUCTS, DOCUMENTATION OR OTHER INFORMATION, PROVIDED PURSUANT TO THIS AGREEMENT, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
FREEDOM FROM COMPUTER VIRUSES OR THAT THE SERVICES SHALL BE UNINTERRUPTED OR ERROR FREE.
12.2 ALL TRANSACTIONS ARE FINAL. NO LICENSES OF PRODUCTS ARE REFUNDABLE, EXCHANGEABLE OR OFFSETTABLE EXCEPT AS SET FORTH IN SECTION 12.1. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 12.1, THE PRODUCTS AND SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY OTHER WARRANTIES OF ANY KIND AND DECIPHER AND ITS SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES, BOTH EXPRESS AND IMPLIED, ORAL OR WRITTEN, RELATING TO THE PRODUCTS AND ANY SERVICES PROVIDED HEREUNDER OR SUBJECT MATTER OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, TITLE OR FITNESS FOR A PARTICULAR PURPOSE. DECIPHER DOES NOT WARRANT THAT THE PRODUCTS, DOCUMENTATION, TRAINING, OR SERVICES WILL MEET CUSTOMER REQUIREMENTS OR THAT OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE.
- Limitations of Liability.
13.1 EXCEPT FOR ANY AMOUNTS AWARDED TO THIRD PARTIES ARISING UNDER SECTION 11 OF THIS AGREEMENT, AND EXCEPT FOR BODILY INJURY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DECIPHER SHALL NOT BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY WITH RESPECT TO ANY PRODUCT, SERVICE OR OTHER SUBJECT MATTER OF THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF USE, LOSS OR ALTERATION OF DATA, COST OF REPLACEMENT, DELAYS, LOST PROFITS, OR SAVINGS ARISING OUT OF PERFORMANCE OR BREACH OF THIS AGREEMENT OR THE USE OR INABILITY TO USE THE PRODUCTS, OR FOR ANY MATTER BEYOND DECIPHER’S REASONABLE CONTROL, EVEN IF SUCH PARTY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. DECIPHER SHALL NOT BE LIABLE FOR ANY LOSS ARISING FROM OR RELATING TO ANY LOSS OR SPOLIATION OF INFORMATION OR DATA, ANY INFORMATION, DATA, EQUIPMENT OR SOFTWARE THAT IS NOT SUPPLIED BY DECIPHER OR ANY FAILURE OF CLIENT TO COMPLY WITH ITS OBLIGATIONS UNDER THIS AGREEMENT. CUSTOMER HAS THE SOLE RESPONSIBILITY FOR ADEQUATE PROTECTION AND BACKUP OF DATA AND/OR EQUIPMENT USED IN CONNECTION WITH THE PRODUCTS OR OTHER INFORMATION AVAILABLE PURSUANT TO THIS AGREEMENT, AND AGREES TO HOLD DECIPHER, AND DECIPHER’S DIRECTORS, OFFICERS, AND EMPLOYEES HARMLESS FROM, AND COVENANTS NOT TO SUE DECIPHER OR DECIPHER’S DIRECTORS, OFFICERS OR EMPLOYEES FOR, ANY CLAIMS, INCLUDING CLAIMS FOR LOST DATA, WORK DELAYS OR LOST PROFITS, BASED ON OR RESULTING FROM USE OF SUCH ITEMS.
13.2 EXCEPT FOR ANY AMOUNTS AWARDED TO THIRD PARTIES ARISING UNDER SECTION 11 OF THIS AGREEMENT, AND EXCEPT FOR BODILY INJURY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY AGREES THAT THE MAXIMUM AGGREGATE LIABILITY OF DECIPHER ON ANY CLAIM OF ANY KIND, WHETHER BASED ON CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO, STRICT LIABILITY, PRODUCT LIABILITY OR NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY OR RESULTING FROM THIS AGREEMENT OR ANY PRODUCTS OR SERVICES FURNISHED HEREUNDER SHALL NOT EXCEED AN AMOUNT EQUAL TO THE LESSER OF [$100,000] AND FEES PAID OVER THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM, OR IN THE EVENT THAT SUCH FEES BEGAN TO BE PAID LESS THAN TWELVE MONTHS PRIOR TO THE EVENT IN QUESTION, THE LESSER OF [$100,000] AND FEES PAID. 13.3 Disclaimer of Responsibility for Viruses. Decipher shall take commercially reasonable security measures to ensure that the Products are free of viruses and other malicious components. Notwithstanding the foregoing, Customer acknowledges that unencrypted transmissions through the Internet are inherently unsecure, that virus protection software, firewalls and other security measures are not foolproof, and that the Products are not invulnerable to fraud or hacking. Customer acknowledges and agrees that it is up to Customer to take commercially reasonable precautions (including, without limitation, the use of anti-virus software) to ensure that information it selects for use is free of such items as viruses, worms, trojan horses and other items of a destructive nature. DECIPHER DOES NOT GUARANTEE THAT ACCESS TO THE PRODUCTS OR OUTPUT OR RESULTS AVAILABLE THROUGH THE PRODUCTS WILL BE UNINTERRUPTED, THAT SUCH ITEMS WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT SUCH ITEMS CANNOT BE HACKED, TAMPERED WITH OR MALICIOUSLY ACCESSED BY THIRD-PARTIES. DECIPHER MAKES NO EXPRESS OR IMPLIED WARRANTY AGAINST SUCH ACTIVITIES OR OCCURRENCES, AND SHALL NOT BE LIABLE, IN TORT, IN CONTRACT OR UNDER ANY OTHER THEORY OF LIABILITY, FOR ANY DIRECT OR INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL OR ANY OTHER DAMAGES RELATING THERETO, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST DATA OR OTHER DAMAGES CAUSED BY VIRUSES, TROJAN HORSES, WORMS, OR OTHER MALICIOUS COMPONENTS DESIGNED TO PERMIT OR OTHERWISE RESULTING IN UNAUTHORIZED ACCESS, TO DISABLE, ERASE OR OTHERWISE HARM SOFTWARE, HARDWARE, OR DATA, OR TO PERFORM ANY OTHER SIMILAR FUNCTION.
14.1 Assignment. Neither this Agreement nor the licenses granted hereunder are assignable or transferable by Customer; any attempt to do so shall be void and Decipher shall have the right to terminate this Agreement upon discovering that it has been assigned without Decipher’s express, advance written permission. Decipher may assign this Agreement in whole or in part, and shall provide notice to Customer of any such assignment as soon as legally possible.
14.2 Notice. Any notice, report, approval or consent required or permitted hereunder shall be in writing and sent by first class U.S. mail return receipt requested, or major commercial rapid delivery courier service to the address specified in the Schedule. Customer agrees that Decipher may also provide notice in connection with modification to the Terms, Services and Fees by posting it on the Decipher website or emailing it to the email address associated with Customer’s account and Customer hereby expressly consents to electronic delivery of notices as provided herein. Such electronic notice shall be considered to be received by Customer within 24 hours of the time it is posted to the Decipher website or emailed to Customer unless Decipher receives notice that the email was not delivered.
14.3 Entire Agreement; Amendment. This Agreement supersedes all prior discussions and agreements between the parties and contains the sole and entire contract between the parties with respect to the subject matter hereof. This Agreement and the Schedules and Exhibits may be amended, modified or supplemented only by a written instrument executed and delivered by both parties or by Decipher as provided in Section 14.2.
If any provision of this Agreement is held to be illegal, invalid or unenforceable, and if the rights and obligations of neither party shall be materially and adversely affected thereby, such provision shall be severed from this Agreement, the remaining provisions of this Agreement shall continue in full force and effect and this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Agreement. 14.5 Relationship of Parties.
The Parties intend to create an independent contractor relationship and nothing contained in this Agreement shall be construed to make either Party a partner, joint venturer, principal or employee of the other Party. Neither Party shall have any right, power or authority to bind the other Party.
14.6 Waiver. Any term or condition of this Agreement may be waived at any time by the Party entitled to the benefit thereof only in a written instrument executed and delivered by such Party. No waiver by a Party of any term or condition of this Agreement shall be construed as a waiver of the same or any other term or condition of this Agreement on any future occasion. No delay or omission by a party to exercise any right or power under this Agreement shall impair or be construed as a waiver of such right or power.
14.7 Third Party Beneficiaries. The provisions of this Agreement are intended solely for the benefit of the parties and their successors and permitted assigns, and it is not the intention of the parties to confer third party beneficiary rights on any person other than a person entitled to indemnification pursuant to Article 11. 14.8 Export Compliance. Customer’s obligations under this Agreement are subject to compliance with all applicable export control laws and regulations. 14.9 Governing Law; Consent to Jurisdiction; Waiver of Jury Trial. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia without giving effect to any conflicts of laws principles thereof. Each party irrevocably submits to the exclusive jurisdiction of the United States District Court for the Eastern District of Virginia or any court of the Commonwealth of Virginia located in Alexandria County in any action or proceeding arising from or relating to this Agreement or any of the transactions contemplated hereby. EACH PARTY IRREVOCABLY WAIVES ANY RIGHT TO A JURY TRIAL.
14.10 No Promotion. Except as otherwise set forth in this Agreement, neither Party may use the name of the other Party or refer to it or any of its affiliates, directly or indirectly, in any advertisement, news release, marketing materials, customer lists, or professional or trade publications without receiving prior written approval from the other Party.
14.11 Survival. Articles 3 – 6, 9 and 11 – 14 shall survive termination of this Agreement. 1
4.12 Non-Solicitation. Decipher and Customer agree that during the period that this Agreement is in force, including extensions or modifications thereto, and for an additional twelve (12) months following this period, Customer shall not actively recruit or solicit employees of Decipher, who are on active payroll status and who were employed by Decipher and performed services for Customer, or who were employed by Customer and were actively involved in the relationship contemplated by this Agreement. Similarly, Decipher shall not actively recruit or solicit employees of Customer who are on active payroll status and were actively involved in the relationship with Decipher contemplated by this Agreement. The foregoing does not prohibit any employee from responding to or pursuing employment opportunities through normal media channels, including internet advertisement, newspapers, and professional publications, so long as it is not an attempt to avoid the intent of the above restriction.
14.13 Counterparts. This Agreement may be executed in counterparts, all of which together shall constitute one instrument.
14.14 Captions. The captions in this Agreement are included for convenience of reference only and in no way define or delimit any of the provisions hereof or otherwise affect their construction or affect. By accepting this agreement or using the Grey Matter software, updates, supplements, and support services, you agree to all of these terms. If you do not accept and comply with these terms, you may not use the software or its features.