LICENSE AGREEMENT
1. DEFINITIONS. Unless otherwise defined herein, the following terms shall have the meanings set forth below:
1.1. "Central Support Services" - means the Internet-based support system provided by NDG by which NDG makes available correction of Defects and Enhancements, support information, and other services.
1.2. "Defect" - means a failure of the Software to substantially conform to the functional specifications set forth in the current published Documentation which is provided generally to NDG's customers.
1.3. "Derivative Works" - means works of authorship based on one or more pre-existing works of NDG including Documentation, Software, Enhancements, Updates thereto, in whatever form the work may be recast, transformed or adapted, including translations, ports and screen reformatting.
1.4. "Designated Location" - means the address of Customer where the Software is authorized to be installed.
1.5. "Designated Operating Environment" - means hardware appliance and system software required for use of the Software, as supplied by NDG and configured in accordance with the specifications and connectivity requirements provided by NDG to Customer. The Designated Operating Environment is described in further detail in the support section of the NDG's website.
1.6. "Documentation" - means the user manuals provided to Customer in connection with the Software that describes the functions and features of the Software and which are provided generally to NDG's customers.
1.7. "Enhancements" - means any improvements or additions to the Software added after the date of this Agreement. Enhancements do not include new functionality or major enhancements separately priced by NDG.
1.8. "Maintenance and Support Fees" - means the fees charged for Maintenance and Support services as set out in the Maintenance and Support addendum.
1.9. "Software" - means the NETLAB PE computer software program installed in an NDG hardware appliance and all Updates and Enhancements to it, as well as all customized versions of Software developed by NDG for Customer pursuant to this Agreement.
1.10. .Supported Equipment. . means the switches, routers, and other equipment specified by NDG on NDG's website as being supported by the Software.
1.11. "Third Party Product" - means third party software used in the Designated Operating Environment and described on NDG's website.
1.12. "Updates" - means program logic changes made by NDG to correct Defects in the Software delivered hereunder.
2. LICENSE GRANT.
2.1. License to Software. On the terms and subject to the conditions of this Agreement, including payment of all applicable fees by Customer, NDG hereby grants to Customer a non-exclusive, non-transferable license to use the Software and Documentation solely as set out below. The Software is licensed for use solely in the Designated Operating Environment and in connection with the Supported Equipment. This Agreement shall commence on the date of delivery of the Software to Customer as evidenced by Customer's signed receipt package delivery, or, if there is no signed receipt, on the date of shipment of the Software.
2.2. Third Party Products. This Designated Operating Environment includes certain Third Party Products which are provided by NDG at no charge (except MySQL) along with the Software. Customer agrees that it must comply with the license terms and conditions of third party vendors of such Third Party Products. An applicable list of the Third Party Products and the license terms and conditions, and details concerning how Customer can obtain the Third Party Products on its own at no charge (except MySQL), can be found by visiting NDG's website and clicking on the "Legal Notices" section. The current list of third-party license terms and conditions is set forth on Exhibit A, attached hereto and incorporated herein by reference.
2.3. Use. Customer and Customer's authorized employees, contractors, students, and customers (.Authorized Users.) shall have the right to access and use the Software only: (a) in executable code form; (b) installed at the Designated Location and in the Designated Operating Environment; and (c) for their own internal use. Any other use of the Software and Documentation shall constitute an Event of Default (reference 6.1) under this Agreement. Customer may not copy, modify, assign, sublicense, sell or rent the Software or create Derivative Works of the Software. Nor may Customer (reverse engineer, disassemble, decompile or reverse decompile the Software or in any way change the related operating system. Any rights not expressly granted herein are hereby expressly reserved to NDG. Customer understands and agrees that, in order to facilitate quality control, whenever an error event is generated in connection with Customer's use of the Software, a notification may be electronically sent by Customer to NDG. Customer shall be fully responsible for Authorized Users. use of the Software and compliance with this Agreement.
2.4. Changes. No changes to the Designated Locations or the Designated Operating Environment shall be made without the written consent of NDG. Customer may relocate the Designated Location to a new address by providing written notification to the NDG. Customer shall not remove the trademarks or other property notices of NDG or any third party.
2.5. Connectivity Requirements. Customer understands and agrees that in order for the Software to function and for NDG to provide Maintenance and Support, including Updates and Enhancements to the Software, the connectivity requirements set out in NDG's website, as modified from time to time must be met by Customer.
2.6. Disabling Device. Customer understands and agrees that in order to protect its intellectual property rights, the Software contains a disabling device that allows NDG to cause the Software to cease functioning if Customer does not comply with the terms of this Agreement, including Customer's failure to make payment when due. If Customer corrects the problem to NDG's satisfaction, then NDG may at its discretion restore connectivity within 5 business days or soon as possible.
3. DELIVERY/ IMPLEMENTATION/MAINTENANCE AND SUPPORT.
3.1. Delivery/Risk of Loss. Customer is responsible for any loss, damage or destruction to the Software upon delivery. Replacement of lost or damaged Software shall be at the cost and expense of the party bearing the risk of loss at the time of the loss or damage.
3.2. Appliance. NDG will deliver to Customer the NETLAB Server Appliance (.ApplicanceAppliance.) as described at the NDG website. All Appliances and other hardware sold by NDG hereunder will be subject solely to the warranties provided by the original manufacturer to the extent that such warranties can be transferred to Customer. NDG will integrate the Software with the Appliance and will integrate all other related software components required to operate the Software, for operation in the Designated Operating Environment.
3.3. Customer will be solely responsible for providing NDG with all necessary lab topologies, curricula, and lab exercises. Customer understands that Customer is responsible for all onsite activitesactivities and that all NDG support will be remote (phone and email) unless otherwise specified in the NETLAB PE Advanced Options document.
3.4. Maintenance and Support. Maintenance and Support services will be provided to Customer as set out in the Maintenance and Support addendum to this Agreement. The initial Maintenance and Support term begins on the date of shipment of the Software and continues for a period of ninety (90) days. Thereafter, Maintenance and Support shall automatically renew for subsequent annual renewal terms, unless either party provides the other party with at least sixty (60) days prior written notice of its intent not to renew Maintenance and Support. NDG shall have no obligation to maintain and support the Software if Customer accesses, attempts to access, modifies or attempts to modify the related underlying operating system or operating system command line interface (shell). Notwithstanding the foregoing, NDG shall have the right to discontinue Maintenance and Support services for all of its Customers by providing an .End of Life. notice to Customer and other customers least sixty (60) days in advance of the effective date of the End of Life. In such event, NDG shall provide Customer with a pro-rata refund covering any pre-paid Maintenance and Support Services fees that are not utilized by Customer because of such End of Life.
4. OWNERSHIP.
4.1. As between NDG and Customer, NDG shall have exclusive ownership of all Software and all Derivative Works and related materials resulting from performance of additional services that affect the Licensed Materials or Derivative Works and all other intellectual property rights, including patents, copyrights, trademarks, service marks, and trade secrets attributable to the foregoing (collectively "Intellectual Property"); provided however, that the Intellectual Property shall not include proprietary data delivered to NDG by Customer. Customer shall have no ownership or proprietary right in the Intellectual Property and shall not use the Intellectual Property for any purpose not approved in writing by NDG.
4.2. Customer acknowledges and agrees that NDG trademarks and brand names will be included on the Software, unless Customer has acquired as an Advanced Option the removal of all NDG trademarks and brand names from the Software. Customer may not remove such trademarks, brand names or any other proprietary rights notices included on the Software.
5. PAYMENTS.
5.1. Fees. In consideration of the license granted and services and hardware provided under this Agreement, Customer shall pay NDG the fee(s) set forth at the NDG website, as well any additional fees for .Advanced Options. ordered by Customer as set forth in the NETLAB PE Advanced Options document. Unless otherwise set forth in writing by NDG, all fees shall be due within thirty (30) days after the invoice has been received by Customer. If Customer does not pay within the time frame set out above, then NDG, at its option, may impose a late charge of one and one half percent (1.5%) per month or the maximum rate allowed by law and/or terminate this Agreement. [No, covered by material breach language]
5.2. Taxes. Customer understands and agrees that amounts for taxes have not been included in any Fees and Customer agrees to pay all present or future sales, excise, use, value-added or other similar taxes or duties (not including taxes or duties on the income of NDG) levied or based on payments made pursuant to this Agreement.
5.3.
6. TERMINATION.
6.1. Termination for Default. Upon breach of any of the terms of this Agreement by Customer, NDG may terminate this Agreement by automated disabling of the Software. Further, this Agreement shall terminate automatically if Customer accesses or attempts to access the underlying operating system or operating system command line interface (shell).
6.2. Rights Upon Termination. Upon termination by NDG for Customer's default, all amounts under this Agreement shall become immediately due and payable.
6.3. Duties Upon Termination. Upon termination of this Agreement Customer shall retain no copies of the Software.
7. WARRANTY.
7.1. Limited Warranty. NDG warrants for a period of ninety (90) days from shipment that the Software shall operate without Defects. THIS LIMITED EXPRESS WARRANTY SPECIFIED ABOVE IS THE ONLY WARRANTY MADE BY NDG AND THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR AGAINST INFRINGEMENT. THIS WARRANTY IS NON-TRANSFERABLE. NDG DOES NOT WARRANT THAT ENHANCEMENTS AND/OR NEW RELEASES WILL BE COMPATIBLE WITH ANY RELEASE OTHER THAN THE MOST CURRENT RELEASE, NOR DOES NDG WARRANT THAT ENHANCEMENTS AND/OR NEW RELEASES WILL BE COMPATIBLE WITH CUSTOMIZED SOFTWARE.
7.2. Negation of Warranties. The above warranty shall be negated by (a) Customer's modification of the Software or Documentation, or use of the foregoing in a manner not permitted by this Agreement, (b) Customer's use of the Software in conjunction with third party software or hardware not provided by NDG or by NDG's agent if provided as authorized by NDG, (c) installation or use of the Software in an environment other than the Designated Operating Environment or access to or attempted access to or modification or attempted modification of the related underlying operating system, or (d) failure to install corrective code or the current version of the Software, including Updates and Enhancement to it.
7.3. Disclaimer for Changes to Supported Equipment. Customer acknowledges that NDG has no control or responsibility for changes to Supported Equipment made by the manufacturers of or providers of support for such Supported Equipment, including but not limited to changes to Supported Equipment software interfaces and device drivers, and that NDG may remove any equipment from the list of Supported Equipment at any time, with or without notice.
7.4. Remedies. Remedies for the breach of warranty obligations hereunder shall be limited to replacement or repair of such non-conforming Software or portion thereof. THE FOREGOING SHALL BE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY MALFUNCTION OR DEFECT IN THE SOFTWARE.
7.5. You (the individual accepting this Agreement on behalf of Customer) represent and warrant that you are fully authorized to enter into this Agreement and bind Customer to Customer.s obligations hereunder. Customer.s acceptance and performance of this Agreement shall not be in conflict with any other duty or obligation of Customer.
7.6. LIMITATION OF LIABILITY. NDG'S AGGREGATE AND TOTAL LIABILITY UNDER THIS AGREEMENT FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES AND SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO NDG FOR MAINTENANCE AND SUPPORT IN THE YEAR IN WHICH THE CLAIM AROSE. IN NO EVENT SHALL NDG BE LIABLE FOR INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM THIS AGREEMENT, INCLUDING BOT NOT LIMITED TO LOST PROFITS, LOST SAVINGS, AND LOSS OF DATA, EVEN IF NDG HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. ANY CLAIM AGAINST NDG ARISING UNDER THIS AGREEMENT MUST BE BROUGHT BY CUSTOMER AND NOT BY ANY THIRD PARTY.
8. INDEMNIFICATION.
8.1. By NDG. NDG shall indemnify, defend and hold harmless Customer against any loss, damage or expense actually awarded against Customer as a result of claims, actions, or proceedings brought by any third party alleging infringement by the Software and Documentation, Updates, and Enhancements relating thereto of any United States of America copyright, trademark, patent, or other proprietary rights, and against its reasonable attorneys' fees and any money damages or costs awarded in respect of any such claim(s) and any suit raising any such claim(s); provided, however, that (a) Customer shall have given NDG prompt written notice of such claim and cooperates with NDG in the defense of the claim. NDG shall have control of the defense of such claim, suit, demand, or action and the settlement or compromise thereof. Further, NDG shall have no liability for any infringement action or claim that is based upon or arises from the matters described in Section 8.2. This Section 8.1 sets forth the exclusive remedy of Customer against NDG with respect to any action or claim of infringement under this Agreement.
8.2. By Customer. Customer shall indemnify, defend and hold harmless NDG against any loss, damage or expense incurred by Customer as a result of claims, actions, or proceedings brought by any third party arising from (a) Customer's, or its agents' or employees' breach of the terms of this Agreement; or (b) acts of negligence or willful misconduct by any employee, or agent, of Customer; (c) failure of Customer to install corrective code or the most current version of the Software; or (d) code and/or design specifications furnished by Customer or its agent. Customer will indemnify NDG against its reasonable attorneys' fees and any money damages or costs awarded in respect of any such claim(s) and any suit raising any such claim(s). If the claim involves the intellectual property of NDG, then NDG shall be entitled to have sole control over the defense and/or settlement of such claim in the manner and in accordance with the procedure described above, and such election by NDG shall have no effect upon Customer's obligations to indemnify and hold harmless hereunder. If the claim does not involve the intellectual property of NDG then Customer shall be entitled to have sole control over the defense and/or settlement of such claim and NDG agrees to cooperate with said defense.
9. RECORDS AND AUDIT. Upon reasonable prior written notice and during normal business hours and no more than once in a twelve month period, NDG, its agents or representatives, shall have the right at its own expense to visit the premises of Customer, including all Designated Locations, if applicable, and any applicable books and records of Customer for the purpose of conducting a business and/or technical audit to determine compliance with the terms of this Agreement. Further, NDG may remotely check compliance with the terms of this Agreement by accessing and reviewing the NETLAB system. Should NDG find that Customer is not in compliance, Customer shall, in addition to paying additional damages as may be due, be responsible for the costs of the audit and all related expenses.
10. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the substantive laws of the State of North Carolina, the United States of America covering contracts made and to be performed in that State, without regard to its conflicts of laws principles and without regard to the United Nations Convention of the International Sale of Goods. Any claim brought under this Agreement shall be brought in a court of competent jurisdiction in Wake County, the State of North Carolina, United States of America.
11. CONFIDENTIAL INFORMATION.
11.1. Customer understands and agrees that the Software, Derivative Works and business plans and processes of NDG constitute trade secrets and confidential information of NDG ("Confidential Information"). Except as expressly provided herein, Customer shall not disclose to or allow a third party to access or use the Confidential Information.
11.2. Customer acknowledges and agrees that, unless Customer has acquired an Advanced Option restricting NDG's rights under this Section, NDG may use Customer.s name in a list of clients and testimonials on the NDG web site and other marketing materials.
12. MISCELLANEOUS.
12.1. Force Majeure. Neither party shall be liable to the other by reason of any failure of performance hereunder (except failure to pay) if such failure arises out of causes beyond such party's reasonable control, despite the reasonable efforts and without the fault or negligence of such party. Any party experiencing such an event shall give as prompt notice as possible under the circumstances.
12.2. Severability. If any provision of this Agreement is held to be unenforceable, then both parties shall be relieved of all obligations arising under such provision, but only to the extent that such provision is unenforceable, and this Agreement shall be deemed amended by modifying such provision to the extent necessary to make it enforceable while preserving its intent or, if that is not possible, by substituting another provision that is enforceable and achieves the same objective and economic result. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, INDEMNIFICATION OR EXCLUSION OF DAMAGES OR OTHER REMEDIES IS INTENDED TO BE ENFORCED AS SUCH. FURTHER, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY UNDER THIS AGREEMENT IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES OR OTHER REMEDIES SHALL REMAIN IN EFFECT.
12.3. Waiver. No delay or omission by either party to exercise any right or power it has under this Agreement shall impair or be construed as a waiver of such right or power. A waiver by either party of any covenant or breach shall not be construed to be a waiver of any succeeding breach or of any other covenant. All waivers must be in writing and signed by the party waiving its rights.
12.4. No Third Party Beneficiaries. The parties agree that this Agreement is for the benefit of the parties hereto and is not intended to confer any legal rights or benefits on any third party and that there are no third party beneficiaries to this Agreement or any part or specific provision of this Agreement.
12.5. Compliance with Laws. Customer shall comply with all governmental, including federal, state, foreign and local laws, statutes, rules and regulations, including all export, re-export and foreign policy controls and restrictions applicable to this Agreement and in the conduct of its business. Failure to comply with this provision shall constitute a material default under this Agreement entitling the non-breaching party to terminate this Agreement.
12.6. Entire Agreement. This Agreement, including all of its attachments, each of which is incorporated into this Agreement, is the entire agreement between the parties with respect to its subject matter. No amendment to, or change of any provision of this Agreement shall be valid unless in writing and signed by any authorized representative of each party.
12.7. Survival of Provisions. Provisions 4, 6.2, 6.3, 7.4, 8, 10, 11, and 12 and all accrued and unpaid obligations arising hereunder shall survive the termination hereof.
ADDENDUM MAINTENANCE AND SUPPORT TERMS AND CONDITIONS
1. DEFINITIONS. Unless otherwise defined below, capitalized terms have the meaning set out in the Agreement:
"Current Release" - means the latest version of the Software offered by NDG generally including all Updates and Enhancements to it.
2. STANDARD MAINTENANCE AND SUPPORT.
2.1. Error Reporting. Customer shall report via phone or e-mail any Defects or make requests for support with respect to the use of the Software to NDG.
2.2. Annual Software Maintenance. Beginning on the Effective Date and in consideration for payment of the Maintenance and Support Fees described in below, NDG shall make a good faith effort to maintain the Software so that it operates without Defects.
2.3. Updates and Enhancements. NDG shall supply Customer with Updates released generally to other customers at no charge beyond the Maintenance and Support Fee as Updates are developed. Enhancements to the Software shall be developed at NDG's sole discretion; any Enhancements released generally during the term of this Agreement at no charge shall be made available to Customer at no charge beyond the Maintenance and Support Fee. Updates and Enhancements may not be provided unless payment is current.
2.4. On-Site Services. Maintenance and Support does not include any on-site services.
2.5. Remedies. Remedies for NDG's breach of its obligation to correct Defects shall be limited to replacement or repair of the non-conforming Software. THE FOREGOING SHALL BE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY DEFECT IN THE SOFTWARE.
3. LIMITATION ON STANDARD MAINTENANCE AND SUPPORT.
3.1. Customer Defects. If Customer notifies NDG of a problem and NDG determines that the problem is due to Customer's incorrect or improper use of the Software or failure to comply with the terms of this Addendum or the Agreement (as opposed to a Defect in the Software), NDG shall have no obligation to take any action to correct the problem. At Customer's request and at NDG's sole discretion, NDG may attempt to correct the problem, and Customer shall pay NDG the then current time and materials rate for all services provided and all expenses of NDG associated with performance of those services, whether or not the problem is corrected.
3.2. Current Version. NDG's obligations under this Addendum shall apply only to the Current Release and to Customer.s use of the Software in connection with the Supported Equipment.
3.3. Third Party Products: NDG, in order to assist Customer, may provide Maintenance and Support of Third Party Products, but is under no obligation to do so. Customer understands and agrees that the Third Party Products are not supported and/or maintained by the Third Party Product vendor. NDG may add or remove third party products provided that the functionality of the Software is not materially adversely affected.
3.4. Data. NDG shall have no responsibility for loss of or damage to Customer's data.
3.5. Modified Software/Customized Software. Maintenance and Support does not cover modified Software or Software used contrary to the terms of the Agreement. Without limiting the foregoing, Maintenance and Support does not cover problems caused in whole or in part by Customer's, or its agents', access to, attempted access to, modification of or attempted modification of the related operating system or operating system command line (shell). Maintenance and Support of customized Software is not covered by this Addendum; rather support of customized Software will be covered by mutually agreed upon terms and conditions set out in a separate agreement and separately priced.
3.6. Connectivity Requirements. NDG shall not be obligated to provide Maintenance and Support if the connectivity requirements described in Section 2.5 of the preceding License terms are not provided by Customer.
3.7. Operating System. Access to the underlying operating system command line interface (shell) is not authorized under this Addendum or the Agreement unless specifically directed in writing by NDG.
3.8. Delay. NDG shall not be responsible for delays in performance or failure to perform under any provision of the Agreement or this Addendum to the extent such delays or failures result from Customer's acts or omissions.
3.9. Customer shall perform tasks as requested by NDG to aid in the resolution of problems, and shall implement all reasonable workarounds to problems as directed by NDG. Customer shall provide NDG connectivity to the Appliance, as described in the support section of the NDG website, to allow NDG to remotely access and diagnose problems in the Software. NDG may identify errors arising from non-NDG hardware or software or from unauthorized modifications to the Software. In such cases NDG reserves the right to charge Customer for correcting such errors at then-current rates for services.
4. TERMINATION.
4.1. Termination of License. If NDG or Customer terminates the Agreement for any reason as to all of the Software, this Addendum shall terminate. If NDG or Customer terminates the Agreement for any reason as to a portion of the Software, then this Addendum and the Agreement shall remain in effect for the remaining Software.
5. WARRANTY AND DISCLAIMER.
5.1. Warranty. All services to be provided under this Addendum shall be performed in a professional manner and by qualified personnel. NDG MAKES NO OTHER WARRANTY OF ANY KIND WITH RESPECT TO SERVICES PROVIDED UNDER THIS AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NDG DISCLAIMS ALL OTHER WARRANTIES INCLUDING ALL WARRANTIES OF IMPLIED MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR AGAINST INFRINGEMENT. NDG DOES NOT WARRANT THAT ENHANCEMENTS AND/OR NEW RELEASES WILL BE COMPATIBLE WITH THE PRIOR RELEASE OR ANY CUSTOMIZED SOFTWARE.
5.2. Disclaimer. NDG shall not be responsible under this Addendum to provide services, Updates, Enhancements, or any other Maintenance and Support for Software if any of the events set out in Section 8.2 (a), (b), (c) and/or (d) of the Agreement have occurred. The obligation to correct Defects under this Addendum shall commence upon expiration of the Warranty period in the Agreement.
6. GOLD SUPPORT
6.1. Under NDG's Gold Support Program, NDG will within 72 business hours replace the NETLAB Server sold by NDG to Customer, and will restore any information from Customer.s backup media, in the event of a failure of the NETLAB Server. Under Standard Support, NDG shall have no NETLAB server replacement responsibilities with respect to the NETLAB Server or restoration of data.
7. ADDITIONAL TERMS
7.1. NDG shall have no obligation to provide support and maintenance services, such as on an hourly basis, outside of the annual Standard Support or Gold Support programs. Also, in the event Customer terminates Support and Maintenance and subsequently wishes to reinstate Support and Maintenance, Customer must pay NDG for all intervening Support and Maintenance Fees associated with the lapse of Support and Maintenance.
7.2. Customer will designate no more than two (2) .Contact Persons" as the sole designated contacts for dealing with NDG on support questions. Before contacting NDG with a question, a Contact Person shall take reasonable steps to resolve the question. For example, the Contact Person shall recreate and verify the alleged problem and review the documentation before contacting NDG. Calls and e-mails for Support Services shall be initiated by Customer to NDG only by a Contact Person. Customer will notify NDG immediately if one or both of its Contact Persons changes.
7.3. Customer agrees to follow the support procedures set forth on NDG's website.
EXHIBIT A THIRD PARTY PRODUCTS AND TERMS AND CONDITIONS
The Software includes the Third Party Products which are subject to the terms and conditions set out below and to the terms and conditions of the applicable third party license agreement. An applicable list of Third Party Software with license agreements is available at NDG website.
Third Party Terms and Conditions:
1. NO WARRANTY. BECAUSE THE THIRD PARTY SOFTWARE IS PROVIDED TO CUSTOMER AT NO CHARGE , EACH THIRD PARTY VENDOR AND NDG OFFER THE THIRD PARTY SOFTWARE "AS IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY , FITNESS FOR A PARTICULAR PURPOSE AND AGAINST INFRINGEMENT.
2. NO LIABILITY. BECAUSE THE THIRD PARTY SOFTWARE IS PROVIDED TO CUSTOMER AT NO CHARGE, EACH THIRD PARTY VENDOR AND NDG SHALL HAVE NO LIABILITY TO CUSTOMER FOR ANY DAMAGES ARISING OUT OF THE USE OF THE THIRD PARTY SOFTWARE, INCLUDING DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR OTHER DAMAMGES, INCLUDING FOR LOST OR CORRUPTED DATA, EVEN IF THE THIRD PARTY VENDOR AND NDG HAVE BEEN ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES.
3. Customer is subject to the terms and conditions of the vendors of Third Party Products which licenses may be viewed on NDG's website.