Netsparker® End User License Agreement (EULA)
IMPORTANT – CAREFULLY READ ALL THE TERMS AND CONDITIONS OF THIS NETSPARKER SUBSCRIPTION AND SERVICES AGREEMENT (THIS “AGREEMENT”). BY AGREEING TO AN ORDER FORM INCORPORATING THIS AGREEMENT, CLICKING “I ACCEPT”, “CREATE” OR PROCEEDING WITH THE INSTALLATION OF THE NETSPARKER ON-PREMISE SCANNER SOFTWARES AND/OR ACCESS AND USE OF THE NETSPARKER ON-DEMAND SCANNER (COLLECTIVELY, THE NETSPARKER PRODUCTS), OR USING THE NETSPARKER PRODUCTS AS AN AUTHORIZED REPRESENTATIVE OF YOUR COMPANY NAMED ON THE APPLICABLE ORDER FORM ON WHOSE BEHALF YOU INSTALL AND/OR USE THE NETSPARKER PRODUCTS, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND ACCEPT THIS AGREEMENT WITH NETSPARKER, LTD., A PRIVATE LIMITED COMPANY REGISTERED IN ENGLAND (“NETSPARKER”), AND THAT YOU AGREE TO BE BOUND BY ITS TERMS. IF YOU DO NOT AGREE WITH ALL OF THE TERMS OF THIS AGREEMENT, DO NOT INSTALL, COPY OR OTHERWISE USE THE NETSPARKER PRODUCTS. THE EFFECTIVE DATE OF THIS AGREEMENT SHALL BE THE DATE THAT YOU ACCEPT THIS AGREEMENT AS SET FORTH ABOVE.
1.1 “Authorized Users” means employees or contractors of Customer who are authorized to use the Netsparker Service, solely for Customer’s internal business purposes, subject to applicable Usage Parameters and otherwise in compliance with this Agreement.
1.2 “On-Demand Scanner” means the Netsparker proprietary software as a service scanner programs set forth in an Order Form, for use over the internet, and any and all modified, updated, or enhanced versions thereof that Netsparker may provide to Customer or its Authorized Users under this Agreement.
1.3 “On-Premise Scanners” means the Netsparker proprietary client software programs set forth in an Order Form, in executable code form, and any and all modified, updated, or enhanced versions thereof that Netsparker may provide to Customer or its Authorized Users under this Agreement.
1.4 “Documentation” means the operating instructions, user manuals, product specifications, “read-me” files, and other documentation that Netsparker makes available to Customer in hard copy or electronic form for the Netsparker Service, and any modified, updated, or enhanced versions of such documentation.
1.5 “Intellectual Property Rights” means patents and patent applications, inventions (whether or not patentable), trademarks, service marks, trade dress, copyrights, trade secrets, know-how, data rights, specifications, mask-work rights, moral rights, author’s rights, and other intellectual property rights, as may exist now or hereafter come into existence, and all derivatives, renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the United States or of any other state, country or jurisdiction.
1.6 “Netsparker Service” means Netsparker’s proprietary web application security scanning software programs made available to Customer as the On-Premise Scanners and/or the On-Demand Scanner as specified on the Order Form.
1.7 “Order Form” means an order form entered into between Customer and Netsparker for Customer’s purchase of a Subscription or other services from Netsparker.
1.8 “Subscription” means a subscription purchased by Customer to access and use the Netsparker Service and receive Support during the applicable Subscription Term, as further specified on the applicable Order Form.
1.9 “Subscription Fees” has the meaning given to such term in Section 4.1.
1.10 “Subscription Term” means the subscription term for Customer’s access and use of the Netsparker Service set forth on the applicable Order Form.
1.11 “Support” has the meaning given to such term in Section 3.
1.12 “Usage Parameters” means the maximum number of permitted web application scans using the Netsparker Service specified on the Order Form, and any other parameters specified in the Documentation, Order Form, or in writing by Netsparker regarding the scope of use of the Netsparker Service by Customer or its Authorized Users.
2. NETSPARKER SERVICE
2.1 License Grant. Subject to Customer’s compliance with the terms and conditions of this Agreement, including payment of all applicable fees, Netsparker hereby grants to Customer a personal, nonsublicensable, nonexclusive, nontransferable, limited license, solely during the Subscription Term or Trial Period (subject to Section 2.2 below), as applicable, set forth in the Order Form, to: (i) if Customer has ordered the On-Demand Scanner as set forth on the Order Form, access and use, and permit its Authorized Users to access and use, the On-Demand Scanner, over the internet, solely for Customer’s internal business purposes, subject to the Usage Parameters set forth on the Order Form and in accordance with the Documentation; and/or (ii) if Customer has ordered the On-Premise Scanners as specified in the Order Form, permit Authorized Users to install, execute and use, in object code form only, the On-Premise Scanners, solely for Customer’s internal business purposes, subject to the Usage Parameters set forth on the Order Form and in accordance with the Documentation; and (iii) reproduce and use a reasonable number of copies of the Documentation in support of the exercise of the licenses granted in clauses (i) and (ii) above.
2.2 Trial Version. Notwithstanding Section 2.1, if Customer has obtained any Netsparker Service on a trial basis (the “Trial Version”), Customer understands and agrees that the license set forth in Section 2.1 is granted by Netsparker to Customer for the Trial Version solely for the trial period set forth in the applicable Order Form (“Trial Period”) for Customer’s own internal evaluation purposes, and subject to any and all technical limitations implemented by Netsparker in the Trial Version. Customer acknowledges and agrees that if Customer has not purchased a Subscription prior to the expiration of the Trial Period, this Agreement will automatically terminate (without the requirement of providing any termination notice) and the Trial Version may cease functioning. In addition to the restrictions set forth in Section 2.3, Customer shall not attempt to circumvent, dismantle or otherwise interfere with any time-control disabling functionality in the Trial Version that causes the Trial Version to cease functioning upon the expiration of the Trial Period. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE TRIAL VERSION IS PROVIDED “AS-IS’ AND WITHOUT ANY WARRANTY WHATSOEVER OR ANY SUPPORT OR OTHER SERVICES (INCLUDING ANY UPDATES OR UPGRADES).
2.3 Restrictions. Except as expressly set forth in this Agreement, Customer will not (and will not allow any third party to): (i) decompile, disassemble, reverse engineer, or otherwise attempt to derive the structure of the Netsparker Service or the source code from the Netsparker Service, except to the extent such a restriction is not permitted by applicable law and further, in such event, Customer must first request such code from Netsparker in writing in advance and any such use will be limited as needed for interoperability; (ii) distribute, license, sublicense, assign, transfer, provide, lease, lend, rent, disclose, use for timesharing or service bureau purposes, or otherwise use or allow others to use for the benefit of any third party, any Netsparker Service (except as expressly and specifically authorized in writing by Netsparker), (iii) use or access the Netsparker Service in order to build a similar or competitive product or service or disclose to any third party any benchmarking or comparative study involving any Netsparker Service, (iv) modify, adapt, translate, or create derivative works of the Netsparker Service or Documentation; (v) remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of Netsparker or its suppliers on or within the Netsparker Service or Documentation; (vi) use the Netsparker Service for or in conjunction with, or initiate security scanning of, any web domain (or part of a domain) that has any content that may be adult in nature (e.g. tobacco, firearms, alcohol), obscene, pornographic, abusive, offensive, profane, or defamatory; or (vii) violate any applicable laws or regulations, or the rights of any third party in connection with the use or access of the Netsparker Service. Netsparker reserves all rights and licenses not expressly granted to Customer in Section 2.1 and no implied license is granted by Netsparker. CUSTOMER ACKNOWLEDGES THAT THE Netsparker SERVICE MAY INCLUDE FEATURES TO PREVENT USE AFTER THE APPLICABLE SUBSCRIPTION TERM AND/OR CUSTOMER’S USE INCONSISTENT WITH THIS AGREEMENT.
2.4 Delivery and Acceptance. Following execution of this Agreement, Netsparker shall enable Customer to download or make available over the internet, as applicable, the Netsparker Service ordered by Customer as specified in the Order Form. The Netsparker Service (and any future software updates or upgrades that Netsparker may make available to Customer from time-to-time and which are included in the defined term “On-Premise Scanners” and/or “On-Demand Scanner”, as applicable) will be deemed accepted upon Netsparker making the Netsparker Service (or the relevant update or upgrade) available to Customer.
2.5 Proprietary Rights. Netsparker or its licensors retain all right, title and interest in and to the Netsparker Service and related Documentation and materials (and any and all copies thereof) including, without limitation, any and all Intellectual Property Rights thereto. Title to the Netsparker Service shall not pass from Netsparker to Customer, and the Netsparker Service and all copies thereof shall at all times remain the sole and exclusive property of Netsparker.
2.6 Feedback. To the extent Customer or any Authorized Users provides any suggestions and feedback to Netsparker regarding the functioning, features, and other characteristics of the Netsparker Service, Documentation, or other materials or services provided or made available by Netsparker (“Feedback”), Customer hereby grants Netsparker a perpetual, irrevocable, non-exclusive, royalty-free, fully-paid-up, fully-transferable, worldwide license (with rights to sublicense through multiple tiers of sublicensees) under all of Customer’s intellectual property rights, for Netsparker to use and exploit in any manner and for any purpose.
3. SUPPORT. During the applicable Subscription Term set forth in each Order Form (subject to Customer’s payment of applicable Subscription Fees), Netsparker will use commercially reasonable efforts to provide Customer remote technical and operational support and maintenance services during Netsparker’s normal business hours for Customer’s use of the Netsparker Service (“Support”) in accordance with Netsparker’s then current Support terms and conditions.
4. FEES AND PAYMENT
4.1 Subscription Fees. The subscription fees payable by Customer for the Netsparker Service license and services, and the applicable Subscription Term, will be set forth in each Order Form (“Subscription Fees”). The Subscription Fees shall be paid in advance on an annual basis as set forth in the initial Order Form. At any time during a Subscription Term, Customer may submit an Order Form to increase the Usage Parameters and, upon Netsparker acceptance of such Order Form, Customer shall pay the Subscription Fees for such increase, pro-rated for the remainder of Customer’s then-current Subscription Term, and such Order Form shall renew concurrently with Customer’s then-current Subscription for a period equal to Customer’s initial Subscription Term.
4.2 Services. The fees payable by Customer for Support are included in the Subscription Fees. The level of Support provided to Customer will be determined by the specific Netsparker Service product licensed to Customer as set forth in each Order Form.
4.3 Payment Terms. All payments shall be made in the currency of, and within the borders of the United States. Customer will pay all taxes, shipping, duties, withholdings, backup withholding and the like; when Netsparker has the legal obligation to pay or collect such taxes, the appropriate amount shall be paid by Customer directly to Netsparker. If all or any part of any payment owed to Netsparker under this Agreement is withheld, based upon a claim that such withholding is required pursuant to the tax laws of any country or its political subdivisions and/or any tax treaty between the U.S. and any such country, such payment shall be increased by the amount necessary to result in a net payment to Netsparker of the amounts otherwise payable under this Agreement. Customer will reimburse Netsparker for all reasonable travel and other related expenses incurred by Netsparker in its performance hereunder; provided, however, that such expenses shall have been pre-approved by Customer.
4.4 Changes to Fees. Netsparker may change its fees and payment terms at its discretion; provided however, that such changes will not take effect for Customer until the start of the next Subscription Term (as specified in the applicable Order Form). Netsparker will provide written notice to Customer of any changes to the fees that affect the Netsparker Service licensed and Support purchased by Customer.
4.5 Inspection Right. During the term of this Agreement and for one (1) year thereafter, Netsparker or its designated agent may inspect Customer’s use of the Netsparker Service and its facilities and records to verify Customer’s compliance with the terms of this Agreement. Any such inspection will take place only during Customer’s normal business hours and upon not less than ten (10) business days’ prior written notice from Netsparker. Customer shall reasonably cooperate with such audit and shall make such personnel and records available as Netsparker may reasonably request. Netsparker will give Customer written notice of any non-compliance, including any use of the Netsparker Service or services beyond that authorized under this Agreement and without limiting Netsparker’s remedies arising from such unauthorized use, Customer shall promptly: (i) cease such unauthorized use; (ii) pay Netsparker any additional fees due to the extent Customer’s use of the Netsparker Service has exceeded the number of licenses purchased by Customer; and (iii) reimburse Netsparker’s reasonable, documented costs incurred in conducting such inspection.
5. TERM AND TERMINATION
5.1 Term. Subject to termination as set forth in Agreement, the term of this Agreement will commence on the Effective Date and will continue for as long as the Netsparker Service or Support are being provided to Customer under this Agreement. The term of the Netsparker Service Subscription and (subject to Section 4.4) the corresponding periodic Subscription Fees set forth in an Order Form shall automatically renew for successive terms equal in duration to the initial Subscription Term unless either party notifies the other party in writing, not less than sixty (60) calendar days before the expiration of the then-current Subscription Term, that such party does not wish to renew the Netsparker Service license for an additional Subscription Term.
5.2 Termination. Either party may terminate this Agreement immediately without further notice if the other party breaches its obligations under this Agreement and does not remedy such breach within thirty (30) calendar days of the date on which the breaching party receives written notice of such breach from the non-breaching party.
5.3 Effect of Termination. Upon the termination of this Agreement for any reason: (i) the licenses granted under this Agreement in respect of the Netsparker Service shall immediately terminate and Customer and its Authorized Users shall cease use of the Netsparker Service; (ii) Netsparker’s obligations to perform Support shall immediately terminate; (iii) Customer shall pay to Netsparker the full amount of any outstanding fees due hereunder; and (iv) within ten (10) calendar days of such termination, each party shall destroy or return all Confidential Information of the other party in its possession or control, and will not make or retain any copies of such information in any form, except that the receiving party may retain one (1) archival copy of such information solely for purposes of ensuring compliance with this Agreement. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE Netsparker SERVICE MAY CONTAIN DISABLING CODE THAT (EITHER AUTOMATICALLY OR AT NETSPARKER’S CONTROL) WILL RENDER THE Netsparker SERVICE (AND RELATED DATA) UNUSABLE UPON TERMINATION OR CUSTOMER’S BREACH OF THIS AGREEMENT. The following Sections shall survive any termination or expiration of this Agreement: 1, 2.3, 2.4, 2.5, 2.6, 4, 5.3, and 7.2 through 14 (inclusive).
6.1 Indemnification by Netsparker. Netsparker shall hold Customer harmless from liability to third parties resulting from infringement by the Netsparker Service the copyright or misappropriation of any trade secret of any third party, provided Netsparker is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Netsparker will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to: (i) the Netsparker Service or portions or components thereof (a) not created by Netsparker, (b) that are modified after delivery by Netsparker, (c) combined with other products, processes or materials where the alleged infringement relates to such combination, (d) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, (e) where Customer’s use of such Netsparker Service is not strictly in accordance herewith, or (f) a Trial Version. In the event of a claim or if Netsparker believes a claim is likely, Netsparker may modify the Netsparker Service, obtain a license for Customer or if the foregoing are not accomplished, terminate this Agreement.
6.2 Indemnification by Customer. Customer will indemnify Netsparker from all damages, costs, settlements, attorneys' fees and expenses related to (i) any claim of infringement or misappropriation excluded from Netsparker’s indemnity obligation by the preceding sentence, or (ii) any other claim in connection with the unauthorized use or distribution thereof.
7. LIMITED WARRANTY AND DISCLAIMER
7.1 Limited Warranty. Netsparker represents and warrants to Customer that the Netsparker Service when used for its intended purpose and in accordance with Netsparker's instructions, will materially conform to Netsparker's published specifications for a period of thirty (30) calendar days from the date Customer is first permitted to access and use the Netsparker Service. Customer's sole and exclusive remedy, and Netsparker's sole and exclusive liability for any breach of this warranty will be, at Netsparker's sole discretion, to either fix the Netsparker Service to remedy the defect or refund the applicable Netsparker Service subscription fees paid by Customer for the Netsparker Service, in each case on condition that Subscriber promptly notifies Netsparker in writing of any alleged breach of this warranty within such thirty (30) calendar day period. This warranty is null and void to the extent the Netsparker Service: (i) fails to conform with this warranty as a result of its use with any third party hardware or software; or (ii) is used for an unintended purpose, is used other than in accordance with its published documentation or specifications, or is otherwise used in breach of this Agreement.
7.2 Disclaimer. EXCEPT AS SET FORTH IN SECTION 7.1, THE NETSPARKER SERVICE AND SERVICES PROVIDED TO CUSTOMER ON AN “AS IS” BASIS, WITH ANY AND ALL FAULTS, AND WITHOUT ANY OTHER WARRANTY OF ANY KIND AND NETSPARKER EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, GUARANTEES AND CONDITIONS WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS. NETSPARKER DOES NOT WARRANT THAT THE NETSPARKER SERVICE OR SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE RESULTS OF ITS USE WILL BE CORRECT, ACCURATE, OR RELIABLE. CUSTOMER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN AS SET FORTH IN THIS SECTION 7 AND THAT NO WARRANTIES ARE MADE BY ANY OF NETSPARKER’S SUPPLIERS.
7.3 Jurisdictional Issues. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF IMPLIED WARRANTIES OR CONDITIONS, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO CUSTOMER. IN SUCH EVENT, NETSPARKER’S WARRANTIES AND CONDITIONS WITH RESPECT TO THE NETSPARKER SERVICE AND SERVICES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION.
8. LIMITATION OF LIABILITY
8.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE, IN NO EVENT SHALL NETSPARKER BE LIABLE OR OBLIGATED, WITH RESPECT TO THIS AGREEMENT, THE Netsparker SERVICES, OR SERVICES, OR ANY OTHER MATERIALS PROVIDED BY NETSPARKER HEREUNDER, WHETHER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY AND EVEN IF NETSPARKER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY OR OBLIGATION: (I) IN THE AGGREGATE, FOR ANY AMOUNTS IN EXCESS OF (1) THE FEES PAID TO NETSPARKER BY CUSTOMER HEREUNDER WITH RESPECT TO THE APPLICABLE Netsparker SERVICE DURING THE SIX (6) MONTH PERIOD PRIOR TO THE CAUSE OF ACTION, OR (2) TEN THOUSAND DOLLARS ($10,000.00), IF CUSTOMER HAS PAID NO FEES TO NETSPARKER HEREUNDER; (II) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (III) FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, RELIANCE, OR CONSEQUENTIAL DAMAGES; (IV) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (V) FOR ANY MATTER BEYOND NETSPARKER’S REASONABLE CONTROL. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF THIS AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
8.2 SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR OTHER DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO CUSTOMER. IN SUCH EVENT, THE LIABILITY OF NETSPARKER FOR SUCH DAMAGES WITH RESPECT TO THE NETSPARKER SERVICES AND SERVICES WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION.
8.3 THE PARTIES AGREE THAT THIS SECTION 8 REPRESENTS A REASONABLE ALLOCATION OF RISK AND THAT NETSPARKER WOULD NOT PROCEED IN THE ABSENCE OF SUCH ALLOCATION. THIS ALLOCATION OF RISK IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.
9. CONFIDENTIALITY. “CONFIDENTIAL INFORMATION” means any proprietary information received by the other party during, or prior to entering into, this Agreement that a party should know is confidential or proprietary based on the circumstances surrounding the disclosure including, without limitation, the Netsparker Service and any non-public technical and business information. Confidential Information does not include information that (i) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure without an obligation of confidentiality; (iii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party without restriction on use or disclosure. Customer and Netsparker will maintain the confidentiality of Confidential Information. The receiving party of any Confidential Information of the other party agrees not to use such Confidential Information for any purpose except as necessary to fulfill its obligations and exercise its rights under this Agreement. The receiving party shall protect the secrecy of and prevent disclosure and unauthorized use of the disclosing party's Confidential Information using the same degree of care that it takes to protect its own confidential information and in no event shall use less than reasonable care. The receiving party may disclose the Confidential Information of the disclosing party if required by judicial or administrative process, provided that the receiving party first provides to the disclosing party prompt notice of such required disclosure to enable the disclosing party to seek a protective order. Upon termination or expiration of this Agreement, the receiving party will, at the disclosing party’s option, promptly return or destroy (and provide written certification of such destruction) the disclosing party’s Confidential Information.
10. PUBLICITY. Netsparker may use Customer’s name and logo in client listings. Netsparker may issue a press release announcing the relationship contemplated hereby, subject to Customer’s approval which shall not be unreasonably withheld or delayed.
11. EMBEDDED REPORTING. Customer acknowledges that Netsparker Service may contain automated reporting routines that will automatically identify and analyze certain aspects of use and performance of Netsparker Service and/or the systems on which they are installed, as well as the operator and operating environment (including features used and problems and issues that arise in connection therewith) and provide reports to Netsparker. Netsparker uses such information to improve the Netsparker Service and for license verification.
12. GOVERNMENT LICENSES. The Netsparker Service licensed to Customer under this Agreement is "commercial computer software" as that term is described in DFAR 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.11 (Technical Data) of the Federal Acquisition Regulations (“FAR”) and its successors. If acquired by or on behalf of any agency within the Department of Defense (“DOD”), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202 of the DOD FAR Supplement and its successors.
13. EXPORT. Customer acknowledges that the laws and regulations of the United States of America and foreign jurisdictions may restrict the export and re-export of certain commodities and technical data of United States of America origin, including the Netsparker Service. Customer agrees that it will not export or re-export the Netsparker Service without the appropriate United States or foreign government licenses or permits.
14. MISCELLANEOUS. Customer may not assign or otherwise transfer this Agreement or any of its rights or obligations hereunder to a third party without the written consent of Netsparker, except that Customer may, without such consent, assign or transfer this Agreement, in whole, pursuant to a transfer of all or substantially all of Customer’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment or transfer of this Agreement by Customer in contravention of the foregoing shall be null and void. Netsparker may freely assign or transfer this Agreement hereunder without Customer’s consent. The provisions hereof are for the benefit of the parties only and not for any other person or entity. Any notice, report, approval, authorization, agreement or consent required or permitted hereunder shall be in writing; notices shall be sent to the address the applicable party has or may provide by written notice or, if there is no such address, the most recent address the party giving notice can locate using reasonable efforts. No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise. If any provision shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this arrangement shall otherwise remain in full force and effect and enforceable. This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the England without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods or the Uniform Computer Information Transactions Act. This is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter hereof and any waivers or amendments shall be effective only if made in writing; however, any pre-printed or standard terms of any purchase order, confirmation, or similar form, even if signed by the parties after the effectiveness hereof, shall have no force or effect. The substantially prevailing party in any action to enforce this agreement will be entitled to recover its attorney’s fees and costs in connection with such action.
® Netsparker is a Registered Trade Mark.