PLEASE READ THESE TERMS OF SERVICE (THE “AGREEMENT”) CAREFULLY BEFORE ACCESSING OR USING THE SOFTWARE OR SERVICES. UNLESS YOU HAVE A SEPARATE WRITTEN AGREEMENT WITH CHECKMARX GOVERNING YOUR USE OF THE SOFTWARE OR SERVICES, WHICH MUST BE IN ADVANCE AND PRESENTED TO NOVA8, THIS AGREEMENT, WHICH INCLUDES A BINDING ARBITRATION CLAUSE THAT IMPACTS YOUR DISPUTE RESOLUTION RIGHTS, REPRESENTS A BINDING LEGAL AGREEMENT BETWEEN YOU AS THE INDIVIDUAL, THE COMPANY, OR THE LEGAL ENTITY THAT WILL BE UTILIZING THE SOFTWARE OR SERVICES (“YOU” OR “CUSTOMER”) AND THE NOVA8 ENTITY IDENTIFIED BELOW (“NOVA8”).IF YOU ARE ACCESSING OR USING THE SOFTWARE OR SERVICES, OR ANY PART THEREOF, ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU HEREBY ACCEPT THIS AGREEMENT ON BEHALF OF SUCH COMPANY OR ENTITY, YOU ACKNOWLEDGE THAT SUCH COMPANY OR ENTITY IS LEGALLY BOUND BY THIS AGREEMENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ACT ON BEHALF OF AND BIND SUCH COMPANY OR ENTITY. YOU MAY NOT ACCEPT THIS AGREEMENT ON BEHALF OF A COMPANY OR ENTITY UNLESS YOU ARE AN EMPLOYEE OR OTHER AUTHORIZED AGENT OF SUCH COMPANY OR ENTITY WITH THE RIGHT, POWER AND AUTHORITY TO BIND AND ACT ON BEHALF OF SUCH COMPANY OR ENTITY.IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO ACCESS OR USE THE SOFTWARE OR SERVICES OR ANY PART THEREOF. BY CLICKING “I ACCEPT,” “I AGREE,” OR SIMILAR ACCEPTANCE TEXT, BY EXECUTING A DOCUMENT INCORPORATING THIS AGREEMENT BY REFERENCE, OR BY ACCESSING OR USING THE SOFTWARE OR SERVICES, YOU HEREBY AGREE TO THIS AGREEMENT. 

1.Definitions.

1.1. “Affiliate” means, with respect to a Party, any entity that, directly or indirectly, controls, is controlled by, or is under common control with such Party, and “control” means the power to direct the management and policies of the controlled entity.
1.2. “Authorized Contractor” means a contractor who holds a valid Solution license purchased by Customer for the purpose of providing services to Customer.
1.3. “Commencement Date” means, unless otherwise agreed to in writing by the Parties, the commencement date set forth in the Quotation, or if no date is set forth in the Quotation: (i) for Solutions and Solutions delivered via SaaS or Hosting Services, the date on which the Service or Solution is first made available to Customer; or (ii) for Local Software, the date on which license keys for the Software are first made available to Customer by Nova8.
1.4. “Data Product” means Manufacturer’s vulnerability data, threat intelligence data, or other application or database product security data feed.
1.5. “Documentation” means the current documentation for the Solution located at https://www.checkmarx.com/documentation.
1.6. “Fees” means the Solution and/or Service fees payable by Customer as set forth in the Quote.
1.7. “Hosting Services” means Checkmarx’s provision of access to the Software through Internet hosting services.
1.8. to it.
1.9. “Software/Solution Manufacturer” or just “Manufacturer” means Checkmarx Inc., which retains all rights “Terms of Service” means the conditions, requirements, obligations, liabilities and rules related to the use of the Solution imposed by the Manufacturer, defined in https://checkmarx.com/legal-agreement/terms-of-service . Customer acknowledges and agrees that it is subject to the Terms of Service established by the Software Manufacturer, agrees to fully comply with them and accepts all responsibility for any violation of such terms.
1.10. “Quote” means a valid quotation document provided by Nova8 that defines the quantity and type of licenses for the Solution and Services purchased by Customer.
1.11. “SaaS” stands for software-as-a-service, a software licensing and delivery model in which software is licensed on a subscription basis and hosted centrally.
1.12. “Service(s)” means the Support, Hosting Services, managed services, professional services, and other Solution-related services purchased by Customer as set forth in a Quote.
1.13. “Software” means the object code form of Checkmarx’s software programs and all Software updates and maintenance releases provided as part of the Support services during the Subscription Period.
1.14. “Solution” means the Software license or Data Product purchased by Customer as set forth in the Quote.
1.15. “Support” means the current Software Maintenance and Solution Support services described in the localized Support SLA in the Terms of Service and considering that the portal to have access to support services is: https://nova8.freshdesk.com/support/home or support@nova-8.com

 

2. Subscription Term. The duration of each Solution license and Service subscription purchased pursuant to this Agreement shall commence on the Start Date and continue during the period of time set forth in the Quote, including any renewal term under Section 11.1 (the “Subscription Period”). If no term is set forth in the Quote, the Subscription Term shall mean twelve (12) months from the Commencement Date.

 

3. Solution License Grants and Restrictions. This Section applies when Customer has acquired only the right to use the Solution licenses as set forth in a Quote.
3.1. Licenses and Use Rights. Subject to this Agreement and the payment of the Fees by Customer, NOVA8 grants Customer only the right to use a limited, non-exclusive, non-transferable, non-sublicensable Checkmarx license during the Subscription Term , which will remain under the ownership of NOVA8: (a) to access and use the Solution and Documentation for Customer’s internal business purposes, subject to the restrictions of the License Type and the number and type of licenses purchased; and (b) allow the number and, if applicable, type of users
stated in the Quote to access and use the Solution and Documentation for Customer’s internal business purposes.
3.2. Use by Authorized Contractors. Customer may grant access to the Solution to Authorized Contractors who have a need to use the Solution to fulfill contractual obligations to provide services to Customer. The Solution may only be used by the Authorized Contractor in accordance with the terms and conditions set forth in this Agreement: (a) for the benefit of Customer; and (b) only to the extent necessary to provide the services to Customer. Authorized Contractor may not use the Solution for Authorized Contractor’s own benefit or for the
benefit of any party other than Customer. Customer shall at all times remain responsible for its Authorized Contractors’ use of the Solution and compliance with all terms and conditions of this Agreement.
3.3. Apis. To the extent that Manufacturer and/or NOVA8 has authorized Customer to access the Solution through application programming interfaces (“APIs“), Customer acknowledges and agrees that the APIs, API access credentials, and any API-related documentation and materials: (a) are confidential and proprietary to Checkmarx; (b) may not be distributed, disclosed, or otherwise provided to any third party; (c) may be used solely for Customer’s internal use, solely to enable Customer’s use of the Solution, subject to the license grants and
restrictions applicable to the Solution. The Manufacturer and/or NOVA8, at its sole discretion, reserve the right to restrict the use of the API to prevent abuse, security risks or overuse.
3.4. Access to the assessment. This Section applies if Customer has been granted access to the Solution or any features thereof by Manufacturer for the purpose of evaluation and evaluation use, or as a beta or pre-release offering (“Trial Access“). Customer accepts this Agreement by accepting Trial Access to the Trial Products (defined below). In the event Customer has been granted Trial Access by NOVA8, NOVA8 grants Customer only the right to use a non-exclusive, non-transferable, non-sublicensable license to access and use the Solution or evaluation, beta or pre-release features (the “Products“) for Customer’s internal evaluation purposes only, during the evaluation period designated by NOVA8 (the “Evaluation Period“). If no Evaluation Period is specified in writing by NOVA8, the Evaluation Period shall be fourteen (14) days from Customer’s first access to the Evaluation Product. Access to the Assessment is subject to all restrictions set forth in this Agreement, and all rights not expressly granted herein are reserved by Checkmarx. All Trial Products are offered “as is” without warranty of any kind, and Checkmarx and NOVA8 shall have no responsibility or liability with respect to the Trial Products. You assume all risks and costs associated with your use of the Trial Products. Customer acknowledges that Manufacturer may choose not to release any beta or pre-release features or functionality as part of any future general release versions. At the end of the Evaluation Period, if Customer elects not to enter into a definitive agreement with NOVA8 with respect to the Evaluation Products, Customer will immediately cease use of the Evaluation Products and must, as applicable, destroy all copies of the Evaluation Products and related documentation.

Restrictions on Use. Customer may not, and may not, permit others: (a) to use the Solution or Services beyond the restrictions of the License Type or quantities purchased; (b) attempt to access the Solution or Services through unauthorized means or circumvent any License Type limitations or use restrictions; (c) reverse engineer, decompile, disassemble, modify, or create derivative works of the Solution, Services, or Documentation; (d) attempt to derive the source code of the Solution; (e) reproduce, publish, distribute, transfer, publicly display, resell, rent, lease, sublicense, lend or lend the Solution, Services or Documentation to any third party; (f) use the Solution or Services to provide application security services to a third party or make the Solution or Services available for use by a third party; (g) use the Solution or Services for the purposes of competitive analysis, competitive benchmarking, or to build a competitive product or service; (h) transfer, assign, or permit the sharing of passwords, license keys, access credentials, API keys, or access codes to any third party; (i) make available to any third party any content or output of the Solution or Services, including, but not limited to, benchmarking results; (j) use any robot, spider, data scraping or content extraction tool, or similar mechanism in connection with the Solution, Services, or Documentation; k); upload malicious code, files, scripts, agents, or programs to the Solution or Services; (l) use the Solution or Services in violation of any third party’s rights or applicable laws and regulations; or (m) infiltrate, hack, or otherwise attempt to circumvent or interfere with any authentication or security measures of the Solution or Services.

4. Support and Additional Services. This Section applies when Customer purchases Services to be performed by NOVA8, including Solution Support. All Services are provided remotely, unless otherwise agreed by the Parties.
4.1. Maintenance & Support. If Customer has purchased an annual term license subscription or (if applicable) an annual Software maintenance subscription, NOVA8 will provide Support services during the relevant Subscription Period in accordance with the localized support SLA in the Terms of Service and considering that the portal to have access to support services is: https://nova8.freshdesk.com/support/home or support@nova-8.com
4.2. Training and Implementation Services. If the Client has purchased Training or Implementation Services, Nova8 will provide the Client with the training and implementation services described in the Quotation.
4.3. Hosting & Uptime Services. SaaS Solutions will be provided in accordance with localized service levels in the Terms of Service.
4.4. Managed Services. If purchased by Customer, NOVA8 will perform the managed services in accordance with the Quote and this Agreement.
4.5. Professional Services. All professional services must be defined in a NOVA8 professional services Quote. If purchased by the Client, NOVA8 will perform the professional services in accordance with the Quote and this Agreement. Unless specified in the Quote, professional services must be scheduled reasonably in advance and are subject to availability.
4.6. Provision of Services. When the Services are measured in increments of days, one (1) day of service equals eight (8) hours. Unless otherwise defined in the Quote, all service hours/credits requested by the Client must be used within twelve (12) months of purchase, and at the end of the twelve (12) month period, any unused service hours/credits will be deemed delivered to the Clients. Professional services and managed services are provided during normal business hours, unless otherwise agreed in writing by the Parties.
4.7. Change Orders. Changes to any agreed scope of work require a written change order signed by the Parties prior to the implementation of the changes. Amendment orders shall not take effect until mutually agreed upon by the Parties and executed by an authorized representative of each Party.
4.8. Customer Responsibilities. Customer acknowledges that NOVA8’s ability to provide Services to Customer in a timely manner is contingent upon Customer’s reasonable cooperation and assistance. Customer agrees to provide NOVA8 with reasonable cooperation and access to Customer’s materials to the extent such access is necessary for the performance of the Services. NOVA8 shall not be liable for delays or other problems caused by the Client’s failure to provide reasonable cooperation and assistance.

5. Customer Data. This Section applies when the Manufacturer and/or NOVA8 processes Customer data in connection with the Solutions provided to the Customer. Customer hereby grants NOVA8, Manufacturer and its Affiliates a limited, non-exclusive license to use the data uploaded by Customer during the use of the Solutions or Services (the “Customer Data”) as necessary to provide the Solution and Services to Customer, to provide technical support and assistance to Customer, to monitor the health and operation of the Solution and Services,
and execute and administer the Agreement. Without limiting the foregoing, additional rights on specific types of Customer Data are set forth in the following subsections:
5.1. Customer content. Customer retains all right, title, and interest in and to the content uploaded by Customer in connection with its use of the Solution or Services (the ” Customer Content”). Customer Content will be treated confidentially by NOVA8, Manufacturer and its Affiliates, exercising the same degree of care and protection that Nova8 or Manufacturer takes to safeguard its own confidential information, but no less than reasonable care.
5.2. Personal Information. In the event the Manufacturer and/or NOVA8 Process the personal information of any individual subject to the General Data Protection Regulation (EU) 2016/679 in the course of providing the Solution or Services, the NOVA8 is acting as a Processor and shall handle the personal information in accordance with the Checkmarx Data Processing Agreement located in the Terms of Services.
5.3. Analytics and service data. Manufacturer and its Affiliates may process and use usage analytics and metadata generated during Customer’s use of the Solution and Services for statistical purposes, product improvement and other internal business purposes. Manufacturerand its Affiliates may process and use any other data generated during Customer’s use of the Solutions and Services for statistical and product improvement purposes, provided that the data does not contain any Customer Content or Customer’s personal information and provided that the data has been aggregated, anonymized, de-identified, or otherwise rendered unreasonably associated with or linked to an identifiable individual or the Customer.

6. Title and Ownership; Proprietary Notices.
6.1. Proprietary Rights. The Solutions, Services, and Documentation are licensed, not sold, and Manufacturer, its Affiliates, and licensors retain all right, title, and interest in and to the Solutions, Services, and Documentation, and all copies, improvements, enhancements, modifications, and derivative works of the Solutions, Services, and Documentation, including, without limitation, all patents, copyrights, trade secrets, trademarks and other intellectual property rights. Any Software licenses granted in this Agreement do not grant any rights to the source code of the Software. All express or implied rights in the Solutions, Services, and Documentation not specifically granted herein are expressly reserved by Manufacturer, its Affiliates, and licensors.
6.2. Proprietary Notices. Customer acknowledges that Manufacturer, its Affiliates, and licensors own the copyright and other intellectual property rights in the Solutions, Services, and Documentation. Customer will not remove the copyrights, trademarks, and other proprietary notices contained in the Solutions, the Services Documentation, and any materials provided by Manufacturer under this Agreement.
6.3. Comments. In the event that Customer provides Manufacturer and/or NOVA8 with feedback on the operation, functionality, or use of Manufacturer’s offerings, Customer grants Manufacturer and its Affiliates a perpetual, irrevocable, worldwide, sublicensable, royalty-free license to use, modify, create derivative works from, distribute, and exploit the feedback without additional compensation to Customer.

7. Order and Payment; Acceptance.
7.1. Ordering. Customer may request the purchase of the right to use Solution licenses and subscriptions to the Service by sending written requests to NOVA8. A Customer Affiliate may request the purchase of Solution licenses by submitting a written request to NOVA8, provided that the Customer Affiliate complies with all of Customer’s obligations set forth in this Agreement. All orders are subject to NOVA8’s approval and must be subject to a valid Quote. Once approved by NOVA8, all orders are firm and non-cancellable by the Client. All approved orders are subject to this Agreement. The Services and Solutions shall be delivered by electronic means and shall be deemed accepted by Customer on the Commencement Date.
7.2. Payment. All license grants set forth in this Agreement, and all obligations of NOVA8 to provide the Services or perform its obligations under this Agreement, are subject to the timely payment of the Fees by Customer.

8. Warranties.
8.1. Limited Warranties. NOVA8 warrants to the Client that it offers only the same guarantees as the Manufacturer: (a) NOVA8 will provide or obtain the provision of the Services in a professional and operative manner; (b) the SaaS Solutions shall operate in substantial compliance with the functional specifications set forth in the Documentation during the Solution Subscription Period.
8.2. Remedies. If Customer determines that the foregoing warranties have been breached, Customer shall immediately notify NOVA8 in writing documenting each such nonconformity. Within a reasonable time after receipt of Customer’s notification, NOVA8 will contact Manufacturer who shall, in its sole discretion and as Customer’s sole and exclusive remedy: (a) deliver to Customer an alternative remedy or remediation of the non compliance within a commercially reasonable time; or (b) if the foregoing is not feasible, re-perform the service or provide Customer with a reasonably comparable Workaround; or (c) if Manufacturer is unable to remedy the non-compliance as set forth above, NOVA8 may terminate the relevant subscription and refund any prepaid and unused Fees.
8.3. Limitations of Warranty. The limited warranties set forth above do not apply to the extent that the Solution or Service: (a) is not used in accordance with the Documentation; b) Have been modified without the express authorization of NOVA8 and/or the Manufacturer; (c) fails to function due to a malfunction of Customer’s IT equipment or infrastructure; or (d) does not operate due to third-party software and/or hardware that is not supplied or approved by NOVA8 and/or Manufacturer.
8.4. Disclaimer of Warranties. WITH THE SOLE EXCEPTION OF THE LIMITED WARRANTIES PROVIDED IN SECTION 8.1, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL SOLUTIONS, SERVICES, AND DOCUMENTATION ARE PROVIDED “AS IS” AND NOVA8 AND THE MANUFACTURER DISCLAIM ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. NOVA8 AND THE ANUFACTURER EXPRESSLY DISCLAIM ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- NFRINGEMENT, OR ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. NOVA8 AND THE MANUFACTURER DO NOT REPRESENT OR WARRANT THAT THE SOLUTION, SERVICES, OR DOCUMENTATION WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE OPERATION OF THE SOLUTION OR SERVICES WILL BE UNINTERRUPTED AND/OR ERROR-FREE, OR THAT THE SOLUTIONS OR SERVICES WILL DETECT OR RENDER CUSTOMER’S CODE FREE OF ALL ERRORS, VULNERABILITIES, OR INTRUSIONS.
8.5. Exclusive remedy. THIS SECTION 8 STATES THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND THE ENTIRE LIABILITY OF NOVA8 AND THE MANUFACTURER FOR BREACH OF WARRANTY.

9. Indemnification for Infringement.
9.1. Indemnification. NOVA8 will mediate with Customer the relationship with Manufacturer which will, subject to the exclusions set forth in Section 9.3, defend, at Manufacturer’s expense, any claim brought against Customer by a third party, to the extent that the action is based on an allegation that Solution infringes any validly registered intellectual property right, and the Manufacturer shall pay the costs and damages ultimately awarded against the Customer in any action that is specifically attributable to such claim or to the costs and damages that have been agreed upon by the Manufacturer in a monetary settlement of such action. Manufacturer’s indemnification obligations are expressly conditioned upon Customer promptly notifying NOVA8 in writing of any actual or threatened claim, allowing Manufacturer sole control of the defense and all related settlement negotiations, providing full cooperation for the defense of the same for Manufacturer and not settling or
negotiating a settlement of any claim without the prior written approval of the Manufacturer.
9.2. Remedies. In the event that the Solution is determined or accredited by Manufacturer to be the subject of an infringement claim, Manufacturer may, in its sole discretion: (a) modify the Solution so that it is not infringing; (b) obtain a license for Customer to continue to use the Solution as provided herein; or, if the foregoing options are not commercially viable, terminate Customer’s license to the allegedly infringing Solution, have Customer return or destroy such Solution, and refund (or for purchases made through an authorized reseller, help coordinate a refund of) the prorated amount of the License Fees paid by Customer for such Solution, depreciated for the remaining duration of the Subscription Period.
9.3. Exclusions. Neither NOVA8 nor Manufacturer shall have any liability or liability for any infringement claim based on: (a) use of the Solutions in combination with other items (e.g., hardware, software, operating environments, or data) not provided by Manufacturer and/or NOVA8 where infringement would not have resulted, but for such combination; (b) modification of the Solution by anyone other than Manufacturer where the breach would have resulted only to such modification; or (c) use of the Solution after Manufacturer made a
non-infringing Solution available.
9.4. No additional liability. THIS SECTION 9 STATES THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND THE ENTIRE LIABILITY OF NOVA8 AND THE MANUFACTURER WITH RESPECT TO THE INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.

10. Limitation of Liability. EXCEPT FOR LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW, NEITHER NOVA8 NOR THE MANUFACTURER AND ITS AFFILIATES SHALL NOT BE RESPONSIBLE OR LIABLE IN ANY WAY FOR ANY LOST PROFITS, LOSS OF REVENUE, LOSS OF USE, LOSS OF OR DAMAGE TO DATA, COSTS OF REMEDIATION, LOSS OF GOODWILL, OR ANY SPECIAL DAMAGES, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. EXCEPT FOR LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW, THE MAXIMUM AGGREGATE LIABILITY OF NOVA8 AND THE MANUFACTURER AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID TO NOVA8 UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT GIVING RISE TO A CLAIM.

11. Term and Termination.
11.1. Term. The term of this Agreement shall commence on the date it is accepted by both Parties and shall continue until no active annual Subscription Term is in effect, unless this Agreement is earlier terminated in accordance with this Agreement or extended by written agreement of the Parties. 
11.2. Termination. Either Party may terminate this Agreement: (a) upon written notice in the event of a material breach of this Agreement by the other Party that has not been cured after the expiration of thirty (30) days from the breaching Party’s receipt of written notice of the breach; (b) to the extent permitted by applicable law, if the other Party becomes the subject of any voluntary or involuntary petition under applicable bankruptcy or insolvency laws, or a petition for receivership, liquidation, or composition for the benefit of creditors and such
petition, petition, or proceeding is not dismissed within sixty (60) days after filing; or (c) immediately upon written notice, in the event that either Party reasonably believes that this Agreement or a Party’s performance hereunder will result in a material breach of applicable law, and such breach cannot be promptly corrected to the Party’s reasonable satisfaction despite commercially reasonable measures, or is incurable as a matter of law. Without limiting the foregoing, this Agreement will automatically terminate for your breach of Section 12.
11.3. Effect of Termination. Upon termination of this Agreement: (a) all licenses and rights granted to Customer under this Agreement will immediately terminate; and (b) Customer shall immediately delete all unlicensed copies of the Solution and Documentation.
11.4. Survival of certain provisions. The rights and obligations of the Parties contained in Sections 5.3 (“Analytics and Service Data”); 6 (“Title and Ownership; Property Notices”); 10 (“Limitation of Liability”); 11.3 (“Effect of Termination”); 13 (“Governing Law and Dispute Resolution”); and 14 (“General Provisions”); as well as any obligations to make payments of Fees or other amounts accrued or due hereunder prior to termination, shall survive any termination or expiration of this Agreement.

12. Compliance and Regulatory.
12.1. Export Duty. To the extent consistent with applicable local law, Customer agrees to comply with applicable anti-corruption, export control, and financial sanctions laws in connection with the Solution, Services, and Documentation (collectively, “the Products”), including, but not limited to, the United States Export Administration Regulations, 15 CFR 730 et seq. (“EAR”) and the United States Foreign Assets Control Regulations, 31 CFR 500 et seq. (“OFAC Regulations”) (collectively “Trade Controls”). Customer represents and warrants that
it is not, and that, in the absence of an appropriate license obtained from the appropriate governmental authority, it will not export, re-export, or transfer in the country to, or permit access to, the Products by: (1) any party that is a citizen, ordinarily resident, organized under the laws of, or owned or controlled by the government of, any country or region to which the EAR prohibits exports of EAR99 items without a license (see 15 C.F.R. 746) or with which Checkmarx or its financial institutions prohibit transactions as a matter of policy based on a variety of legal
and trade risks (collectively currently Cuba, Iran, Lebanon, Libya, North Korea, Syria, the Crimea Region, and the self-proclaimed Donetsk People’s Republic and Luhansk People’s Republic); or (2) any party or end-use subject to license requirements imposed by the Trade Controls, including, but not limited to, parties listed in, or directly or indirectly owned 50 percent or more by parties listed on, the list of Specially Designated Nationals and Blocked Persons administered by the U.S. Department of the Treasury, any party listed on the Entity List, or subject to a Denial Order maintained by the U.S. Department of Commerce. United States, any part or end use otherwise described as Parts 744 or 746 of the EAR (15 CFR 744-746), and any party acting on behalf of such party.
12.2. Anti-corruption. Each Party shall, and shall require its directors, employees and agents, in connection with its rights and commitments under this Agreement: (a) to comply with all applicable anti-corruption and anti bribery laws, including, but not limited to, the U.S. Foreign Corrupt Practices Act of 1997 and the U.K. Bribery Act of 2010, each as amended and including any rules or regulations contained therein; (b) not to offer, promise or give to any person working for or engaged by the other party a financial or other advantage to induce such person
to improperly perform a relevant function or activity or to reward such person for the improper performance of a relevant function or activity; and (c) not solicit, agree to receive, or accept, directly or indirectly, any financial or other advantage as an inducement or reward for improper performance of a relevant function or activity in connection with this Agreement.
12.3. Compliance with Laws. Customer shall comply with all relevant laws and regulations applicable to its use of Manufacturer’s Solutions and Services. Customer is solely responsible for determining whether Customer’s and its end users’ use of the Solutions or Services is appropriate and permitted by the relevant laws in the jurisdiction(s) where such Solutions or Services originate or will be accessed and used.
12.4. U.S. Government Rights in Commercial Off-the-Shelf Software. The Solutions and Documentation constitute “commercial computer software” and “commercial computer software documentation” and “technical data” as defined in Section 12.212 of the FAR. In accordance with the applicable provisions of applicable federal procurement regulations, including, but not limited to, 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Solutions and Documentation are being licensed to U.S. Government end users only
as commercial items and in accordance solely with the terms and conditions described herein.

13. Governing Law and Dispute Resolution.
13.1. Governing Law. Unless otherwise designated in a Local Country Addendum, this Agreement shall be governed by and construed in accordance with the laws of the State of New York, United States of America.
13.2. Conflict Resolution. In the event of any controversy or claim arising out of or in connection with this Agreement, the Parties shall consult and negotiate with each other and attempt to reach a solution satisfactory to both Parties. If the Parties fail to reach an agreement within sixty (60) days, any unresolved controversy or claim arising out of or relating to this Agreement shall be resolved by binding arbitration conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and administered by the AAA, unless otherwise designated in a Local Country Addendum. The arbitration shall be conducted in the English language in New York, unless otherwise agreed by the Parties.
13.3. Litigation Law. Notwithstanding any other provision of this Agreement, and notwithstanding the dispute resolution provisions and arbitration requirements set forth herein, NOVA8 and Manufacturer may, without waiving any remedy under this Agreement, seek relief from any court of competent jurisdiction to: (a) protect its confidential information or Intellectual Property Rights; or (b) engage in collection activity or compel payment of Fees due hereunder.

14. Miscellaneous.
14.1. Exclusions. The United Nations Convention on a Uniform Law on the International Sale of Goods, or any similar or successor convention or law, shall not apply to this Agreement. The Parties expressly agree that the Uniform Computer Information Transactions Act shall not apply to this Agreement and, to the extent applicable, the Parties agree to opt out in accordance with its provisions.
14.2. Assignment. This Agreement may not be assigned, delegated, or transferred by Customer without the written consent of NOVA8, and any attempt to take such action shall be null and void. NOVA8 may assign this Agreement, or any rights or obligations contained herein, including, but not limited to, Manufacturer and its Affiliates, or an entity that buys all or substantially all of its assets, or acquires control of Manufacturer by reason of a merger or acquisition, stock sale or otherwise.
14.3. No Waiver. The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver of such provisions or of such Party’s right to enforce each and every such provision.
14.4. Future functionality. Customer agrees that the purchase of the Solution licenses or Services is not contingent upon the delivery of any future functionality or features, or reliance on any oral or written public comments made by NOVA8 and/or Manufacturer regarding future functionality or features.
14.5. Third-party add-ons and integrations. NOVA8 and/or Manufacturer may make available certain optional add-ons or integrations (a “Solution Add-on”) designed to enable the Solutions to access, integrate with, or be interoperable with other third-party platforms, products, or services (a “Third-Party Application”). All use of the Solution Add-ons by Customer is at Customer’s own risk, and NOVA8 does not guarantee the continued availability of the Solution Add-ons, which Manufacturer may discontinue at its discretion. Any use by Customer of the Third Party Applications, and any exchange of data between Customer and any third-party provider, is solely between Customer and the applicable third-party provider. NOVA8 and the Manufacturer do not warrant or support the Third-Party Applications, and NOVA8 and the Manufacturer are not responsible for any disclosure, modification or deletion of Customer Data by the Third-Party Applications or third-party vendors.
14.6. Warnings. All notices or demands hereunder shall be by trackable express courier service or certified or registered mail, return receipt requested, sent to the receiving party’s address, and shall be deemed complete ten (10) days after shipment. Notifications to NOVA8 should be sent to the attention of NOVA8 Legal Department with copy to legal@nova-8.com
14.7. Force Majeure. Except for a Party’s payment obligations, neither Party shall be liable for any delay or failure to perform this Agreement to the extent that such delay or failure is caused by fire, flood, strike, civil, governmental or military authority, act of God, working conditions, earthquakes or any other cause beyond its control and without fault or negligence of the late or defaulting Party. The Party affected by such force majeure event shall take all reasonable steps to minimize the consequences of the event.
14.8. Authorized signatory. Each Party represents and warrants to the other Party that its signatory is duly authorized to enter into this Agreement on behalf of its respective Party and to bind such Party to the terms of this Agreement.
14.9. Electronic Signatures. The parties agree that this Agreement may be signed by electronic signature. Whenever a Party signs an electronic signature in this Agreement, such Party represents and agrees that: (a) the Party’s electronic signature has the same validity as a handwritten signature and shall be a legally binding equivalent; (b) the electronic signature of the Party satisfies the requirements of an original signature as if it were actually signed by the Party in writing; and (c) no certification authority or other third-party verification is required for the enforceability of the Party’s signature. A Party executing this Agreement by electronic signature expressly waives the use of an electronic signature as a defense to the enforcement of this Agreement, to the maximum extent permitted by applicable law.
14.10. Counterparts. This Agreement may be concluded in two or more considerations, each of which shall constitute an original instrument, but all shall constitute the same Agreement. Signatures transmitted by electronic means are considered binding and considered as an original written signature.
14.11. Splicing. This Agreement may only be modified or supplemented by a written document signed by an authorized representative of each Party.
14.12. Partial invalidation. If any provision of this Agreement is found to be unenforceable by law or found to be unenforceable by a court or other tribunal of competent jurisdiction, the unenforceable provision will be severed and the remaining provisions of this Agreement will remain in full force and effect. In such an event, NOVA8 and Customer agree to negotiate in good faith a substitute provision that most reflects the intent of the severed provision.
14.13. Entire Agreement. This Agreement, including any Attachments, Quotes, and linked online terms incorporated herein by reference, constitutes the entire agreement between NOVA8 and Customer with respect to the Solution, Services, and Documentation. In the event that a Local Country Addendum is applicable to Customer, such addendum is incorporated herein by reference and forms part of this Agreement. In the event of any contradiction or discrepancy between the terms of a Local Country Addendum and this Agreement, the terms of the Local Country Addendum shall prevail. Customer acknowledges that it is not entering into this Agreement based on, and has not relied on, any statements not expressly contained in this Agreement. The provisions of this Agreement shall prevail over, and NOVA8 specifically opposes, any additional or conflicting provisions in any purchase order, notice of acceptance, or other document issued by Customer, which shall be null and void.
14.14. Titles and Writing. The section and/or paragraph headings used in this Agreement are for reference purposes only and should not be used in interpreting this Agreement. Nothing in this Agreement shall be construed against either party as drafting this Agreement.
14.15. Advertising. NOVA8 and the Manufacturer shall be permitted to mention the Customer as a current customer on the website(s) of both companies and on the customer lists. If approved in advance by the Customer in writing, NOVA8 and the Manufacturer shall be permitted to (a) issue a press release indicating that the Customer has purchased the Software or Services from NOVA8; (b) publish a case study based on Customer’s use of the Checkmarx Software and/or NOVA8 Services; and/or (c) use Customer as a reference customer.
14.16. No third-party beneficiaries. This Agreement is entered into exclusively for the benefit of NOVA8 and the Client. No third party shall be deemed a beneficiary of this Agreement, and no third party shall have the right to make any claim or assert any right under this Agreement.
14.17. Relationship of Parties. The Parties are independent contractors. Nothing contained herein or done pursuant to this Agreement shall create a principal, partner, or other relationship between the Parties for any purpose or in any sense or create any form of joint venture between the Parties.
14.18. Subcontracting. NOVA8 may subcontract a portion of the Services to a third party contractor, provided that NOVA8 remains responsible for any subcontractor’s compliance with this Agreement and its overall performance under this Agreement.