Ontrack® PowerControls™ End User Licence Agreement
PLEASE READ CAREFULLY BEFORE INSTALLING ANY SOFTWARE FROM THIS WEBSITE.
This licence (“Licence”) is a legal and binding agreement between you, being either an individual or a single entity (“you” or “your”) and KLDiscovery Ontrack, LLC, with address at 9023 Columbine Road, Eden Prairie, MN 55347 (USA) (“Ontrack” or “we”) for ONTRACK POWERCONTROLS computer software, including updates, upgrades, agents or add-on components (“Software”) and its associated user guides, installation guides or supplemental guides (“Documentation”).
IMPORTANT NOTICE TO ALL USERS:
BY INSTALLING THE SOFTWARE FROM THIS WEBSITE, YOU AGREE TO THE TERMS OF THIS LICENCE WHICH WILL BIND YOU. THE TERMS OF THIS LICENCE INCLUDE, IN PARTICULAR, LIMITATIONS ON LIABILITY IN CLAUSE 18.
IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, WE WILL NOT LICENSE THE SOFTWARE AND DOCUMENTATION TO YOU AND YOU MUST DISCONTINUE THE INSTALLATION PROCESS NOW.
1. LICENSE GRANT. Subject to the terms and conditions of this Licence, including the payment of applicable license fees, Ontrack grants you a non-exclusive, non-transferable, revocable and non-sublicensable license to access and use the Software and Documentation and any associated dongles, license keys or other enforcement mechanisms (“Authentication Component”) for your own internal business purposes.
The Software may only be used subject to the limitations set forth in this Licence and the Documentation. Such use, including but not limited to capacity and/or duration of license, shall be authorized pursuant to a document, quote or invoice (an “Order”) provided by Ontrack or its authorized resellers or distributors. Such Order shall incorporate all of the terms and conditions of this Licence and you may not exceed the authorized use without the payment of additional license fees.
2. LICENSE RESTRICTIONS. You shall not:
(a) remove, alter, cover or obfuscate any product identification, copyright notices, or other proprietary rights notice placed or embedded in the Software;
(b) sell, lease, rent, copy, or distribute this Software, Documentation and any associated Authentication Component to a third party except as expressly permitted herein;
(c) cause or permit reverse engineering, disassembly, decompilation or alteration of the Software except to the extent such restriction is expressly prohibited by applicable law;
(d) use a license of the Software with a perpetual term for performing consulting or technical services;
(e) sub-licence the Software to any third party, including your own customers; or
(f) use the Software for competitive analysis purposes. You may make one copy of the Software and Documentation solely for backup or archival purposes. You may not copy any Authentication Component. The Software shall not itself be hosted or made available via a hosted environment or service bureau without additional license fees and terms and conditions.
3. AUDIT RIGHTS. You shall maintain accurate records containing all necessary data required for verification of compliance with the terms of this Licence. Ontrack, or its designee, may, during normal business hours and upon reasonable prior notice to you, audit and analyze your records to verify compliance hereunder.
4. SUPPORT AND MAINTENANCE. Support and maintenance of the Software is subject to the terms of the PowerControls Maintenance Agreement and payment of additional fees.
5. FEES. The fees payable for the Licence to use the relevant version of the Software (“Fees”) are payable subject to the terms of the Order.
6. TERM. Your License to use the Software is effective for the period set out in the applicable Order. If you selected a time limited licence, at the end of this period, your License and your associated rights will expire automatically, unless you choose to renew your Licence.
7. TERMINATION. Your failure to comply with any term or condition of this Licence, including failure to pay the appropriate license fees, shall result in termination or suspension of your License to use the Software, Documentation and any associated Authentication Component(s). Upon termination, you shall discontinue all use of the Software, destroy the Software and Documentation, together with all copies thereof, and return any associated Authentication Component(s).
8. TRIAL LICENCE. If a trial version of the Software is obtained from Ontrack or its authorized resellers or distributors, the Software may be used for evaluation purposes only and is subject to the terms and conditions of this Licence. The trial version of the Software may be used as of the date of delivery until expiration or termination with or without cause by either party. Upon expiration or termination of the trial version of the Licence, all rights granted to you will terminate and you shall discontinue all use of the Software unless you purchase an authorized license pursuant a valid Order. If you choose not to purchase a license, the trial version of the Software must be destroyed, including all copies thereof.
9. DATA PROTECTION. Our processing of your personal data shall be governed by Ontrack’s Privacy Policy (available at https://www.ontrack.com/privacy/) and the terms set out below.
Ontrack collects personal data: (i) when you contact us via email, telephone or by any other means; and (ii) for the purposes of performing our obligations pursuant to this Licence. The purposes for which we process personal data include: (i) to provide the Software and Documentation to you; (ii) to obtain views on the performance of the Software, and (iii) with the appropriate legal permission, direct marketing.
We may disclose personal data to other entities of the KLDiscovery group (of which Ontrack forms part), a full list of which is provided in Ontrack’s Privacy Policy (together with the country where they are established which includes the United States), and to: (i) legal and regulatory authorities for the purposes of reporting any actual or suspected breach of applicable law or regulation; (ii) Ontrack’s accountants, auditors, lawyers and other outside professional advisors; and (iii) third party processors such as payment services providers, shipping/courier companies; technology suppliers, processors who provide compliance services. The purpose of disclosure to other entities is to fulfil Ontrack’s contractual obligations to you or for legitimate business purposes, in accordance with applicable law. Ontrack has implemented security measures described in Ontrack’s Privacy Policy and all entities that may receive the personal data are under a strict contractual obligation to implement security measures ensuring a high level of protection.
You shall at any time have the right to: (i) access and obtain information about the nature, processing or disclosure of you personal data; (ii) rectify your personal data; (iii) request, on legitimate grounds, erasure or restriction of processing of your personal data; (iv) object, on legitimate grounds, to the processing of your personal data; (v) request to have your personal data transferred to another controller; (vi) withdraw your consent to processing of personal data; and (vii) lodge complaints with the applicable data protection authority.
10. THIRD PARTY USE. If you license the Software for your internal business purposes but contract with a third party to perform services such as network management, monitoring, implementation, consulting or other outsourcing services for you (the “Consultant”), the Consultant may use the Software and Documentation licensed by you solely for your benefit in the performance of such contract, provided, however, that you ensure that the Consultant uses the Software, Documentation and/or Authentication Component in accordance with the terms of this Licence. You shall be liable to Ontrack for the acts and omissions of the Consultant in connection with their use of the Software, Documentation and/or Authentication Component. Notwithstanding the foregoing, a Consultant shall not use the Software, including any Authentication Component if applicable, for its own internal business use.
If you provide services to third parties, such as your customers, using the Software, you are required to obtain the commercial use version of the Software via the commercial license to authorize the provision of such services.
11. ASSIGNMENT. You may not assign or transfer the rights or obligations under this Licence to another party without the express written consent of Ontrack. Any attempt to assign this Licence without Ontrack’s consent shall be null and void.
12. COPYRIGHT/OWNERSHIP. You acknowledge and agree that all intellectual property rights in the Software, its source code, the Documentation and any associated Authentication Component belong to, or are licensed to, Ontrack. The rights granted to you in the Software are licensed (not sold) and you have no rights in, or to, the Software or the Documentation other than the right to use them in accordance with the terms of this Licence. Ontrack shall at all times retain all rights, title, interest, including intellectual property rights, in the Software, Documentation and any associated Authentication Components.
13. TRADEMARKS. “Ontrack”, “PowerControls” and other “Ontrack” brand and product names referred to herein are trademarks or registered trademarks of KLDiscovery Ontrack, LLC., in the United States and/or other countries. All other brand and product names are trademarks of their respective owners. This License to use the Software does not provide you with any right to use these trademarks to any purpose whatsoever.
14. IP CLAIMS. (a) Ontrack shall: (i) defend at its own expense any claim brought against you by any third party alleging that your use of the Software and/or the Documentation infringes any third party intellectual property rights (“IP Claim”); and (ii) pay costs and damages (subject to clause 18 below) awarded in final judgment or agreed in settlement of any IP Claim. The provisions of this clause 14 shall not apply unless you: (i) promptly notify Ontrack upon becoming aware of any actual or threatened IP Claim and provide full written particulars; (ii) make no comment or admission and take no action that may adversely affect Ontrack’s ability to defend or settle the IP Claim; (iii) provide all assistance reasonably required by Ontrack; and (iv) give Ontrack sole authority to defend or settle the IP Claim as Ontrack considers appropriate.
(b) If the Software is or is likely to become subject to an IP Claim, Ontrack shall use reasonable endeavours to either: (i) obtain the right for you to continue to use the Software and/or Documentation as applicable; or (ii) replace or modify any relevant software, documentation or materials used in the Software (or the part of it subject to the IP Claim) or the Documentation so that it becomes non-infringing.
(c) If Ontrack is unable to achieve either of the outcomes described above having used reasonable endeavours (including where the costs of doing so are commercially prohibitive), Ontrack may elect by written notification to you that: (i) your use of the Software shall immediately terminate; (ii) you shall promptly uninstall, delete and cease to use the Software; and (iii) Ontrack shall issue you a credit or a refund (at Ontrack’s option) for the Fees paid to Ontrack under this Licence in respect of the Software subject to a reasonable deduction to reflect the time elapsed where you have been able to use the Software prior to termination.
(d) Ontrack shall have no liability or obligations under this clause 14 in respect of (and shall not be obliged to defend) any IP Claim which arises in whole or in part from: (i) any modification of the Software without Ontrack’s express written approval; (ii) installation or use of the Software or the Documentation otherwise than in accordance with this Licence or Ontrack’s instructions; (iii) installation or use of the Software in combination with any software, hardware or data that has not been supplied or expressly authorised by Ontrack; or (iv) any unlawful use made of the Software by Client.
The provisions of this clause 14 set out your sole and exclusive remedy (howsoever arising, including in contract, tort, negligence or otherwise) for any IP Claim or any other actual or alleged infringement of any intellectual property rights.
15. INDEMNITY. You shall defend, indemnify and hold harmless Ontrack against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with: (i) your unauthorised use of the Software and/or Documentation; or (ii) any violation of this Licence.
16. EXPORT RESTRICTIONS. You agree to comply fully with all laws and regulations of the United States and other countries relating to the prohibition of sales of products and services to designated states or jurisdictions, individuals or companies (“Export Laws”) to assure that the Software, Documentation nor any associated Authentication Component are not: (1) exported, directly or indirectly, in violation of Export Laws; or (2) used for any purpose prohibited by Export Laws, including, without limitation, nuclear, chemical, or biological weapons proliferation. None of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported: (i) into (or to a national or resident of) any country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's List of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders. By installing or using the Software, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list.
17. WARRANTIES. THIS SOFTWARE, DOCUMENTATION AND ANY ASSOCIATED AUTHENTICATION COMPONENT IS PROVIDED TO YOU ON AN “AS-IS” BASIS. YOU ASSUME ALL RISKS WHEN INSTALLING OR USING THE SOFTWARE. THERE ARE NO WARRANTIES EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE. ONTRACK DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ONTRACK DOES NOT WARRANT THAT THE SOFTWARE IS NON-INFRINGING, THAT IT WILL MEET YOUR REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED, ERROR-FREE OR VIRUS-FREE.
18. LIMITATION OF LIABILITY. ONTRACK SHALL NOT IN ANY CIRCUMSTANCES WHATEVER BE LIABLE TO YOU, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, ARISING UNDER OR IN CONNECTION WITH THE LICENCE FOR:
(A) LOSS OF PROFITS, SALES, BUSINESS, OR REVENUE;
(B) BUSINESS INTERRUPTION;
(C) LOSS OF ANTICIPATED SAVINGS;
(D) LOSS OR CORRUPTION OF DATA OR INFORMATION;
(E) LOSS OF BUSINESS OPPORTUNITY, GOODWILL OR REPUTATION; OR
(F) ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE.
OTHER THAN THE LOSSES SET OUT BELOW, OUR MAXIMUM AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS LICENCE WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL IN ALL CIRCUMSTANCES BE LIMITED TO: (i) IN CASES OF INTELLECTUAL PROPERTY INFRINGEMENT, A TOTAL OF $10,000; OR (ii) IN ANY OTHER CASE, A SUM EQUAL TO THE APPLICABLE LICENCE FEE YOU PAID.
NOTHING IN THIS LICENCE SHALL LIMIT OR EXCLUDE OUR LIABILITY FOR:
(A) DEATH OR PERSONAL INJURY RESULTING FROM OUR NEGLIGENCE;
(B) FRAUD OR FRAUDULENT MISREPRESENTATION;
(C) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW.
THIS LICENCE SETS OUT THE FULL EXTENT OF OUR OBLIGATIONS AND LIABILITIES IN RESPECT OF THE SUPPLY OF THE SOFTWARE AND DOCUMENTATION.
19. MISCELLANEOUS. This Licence is governed by THE LAWS OF THE STATE OF MINNESOTA and EACH PARTY HERETO SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF MINNESOTA. Each party, on behalf of itself and its affiliates, to the fullest extent permitted by law, knowingly, voluntarily, and intentionally waives its right to a trial by jury in any action or other legal proceeding arising out of or relating to this Licence. The foregoing waiver applies to any action or legal proceeding, whether in contract, tort or otherwise. Each party, on behalf of itself and its affiliates, also agrees not to include any employee, officer or director of the other party or its affiliates as a party in any such action or proceeding. This is the entire agreement between you and Ontrack, which supersedes any prior or subsequent agreement, including your purchase order terms, whether written or oral, relating to this subject matter.
We may amend the terms of this Licence at any time and publish such changes on our website. Where we make any material amendments, we shall notify you in advance of the implementation of such change. Your continued use of the Software and Documentation after implementation of such changes shall amount to your agreement to them.
The failure by us to enforce at any time any of the provisions in this Licence shall not be deemed a waiver of such provision, or any other provision, or our right thereafter to enforce any such provision in the future.
If any provision of this Licence is in violation of any applicable law, such provision shall to such extent be deemed null and void, and the remainder of the Licence shall remain in full force and effect.
20. GOVERNMENT USE. The Software and Authentication Components include “commercial computer software” and related documentation within the meaning of Federal Acquisition Regulation (“FAR”) 2.101, 12.212, and 27.405-3 and Defense Federal Acquisition Regulations Supplement (“DFARS”) 227.7202 and 252.2277014(a)(1). The Software and Authentication Components are proprietary to Ontrack and its third party licensors. You shall ensure that all users, including, but not limited to employees, personnel, representatives or agents of the U.S. Government, are permitted to use the Software and Authentication Components only as expressly authorized under this Licence. In accordance with FAR 12.212 and DFARS 227.7202, neither you nor any government agency or entity shall receive any ownership, license, or other rights in and to the Software and Authentication Components other than the commercial software license rights expressly set forth herein.
Contractor/manufacturer is KLDiscovery Ontrack, LLC., 9023 Columbine Road, Eden Prairie, MN 55347.
Ontrack® PowerControls™ Maintenance Agreement
This Ontrack® PowerControls™ Maintenance Agreement (“Maintenance Agreement”) is entered into between KLDiscovery Ontrack, LLC (“Ontrack”) and the entity specified in the Order ("Customer”). Each shall be a “Party” or collectively the “Parties.” Capitalized terms not defined herein shall have the meaning set forth in the Ontrack Terms of Service for purchases and/or the Ontrack® PowerControls™ End User License Agreement (“License Agreement”) supplied to Customer upon download of the Ontrack® PowerControls™ Software (the “Software”).
1. Maintenance Services
1.1 In accordance with the terms of this Maintenance Agreement, Ontrack will provide the following in relation to the then current version of the Software (collectively “Maintenance Services"):
1.1.1 Updates. Ontrack will make available to Customer downloads of Software updates or upgrades (“Updates”) in the form the Software was originally provided to Customer, including Documentation, as Ontrack makes such Updates for the Software available for general release. “Update” shall include means any modification, correction or addition to the Software or Documentation, including updates and enhancements that Ontrack makes generally available to its customers without additional charge. Customer shall incorporate the Updates as soon as practicable and acknowledges that failure to incorporate any such Update may result in usability issues or security vulnerabilities in the Software for which Ontrack shall not be responsible.
1.1.2 Patches. For Customers currently paid up and in good standing on the applicable Maintenance Agreement, Ontrack will make available to Customer those Patches which have been published and made generally available. “Patch(es)” means additional programming code to be integrated with the Software to correct an error in the standard functioning of the Software or to alleviate its effects (“Error”).
1.1.3 Support. Ontrack shall provide live telephone and email support to Customers with a valid licence to the Software to which Ontrack: (a) can determine if a problem Customer is encountering is attributable to an Error; and (b) to assist in resolving Errors reported by Customer that occur during normal usage of the Software (“Live Support”). Any Live Support described herein shall be offered to Customer only during the normal business hours of the Ontrack Technical Support team, 8:00 AM to 6:00 PM US Central Time, Monday to Friday, excluding Ontrack’s recognized holidays. All support and maintenance shall be conducted in the English language only. Ontrack will use reasonable commercial efforts to remedy Errors reported by Customer to Ontrack. Such remedy may consist of corrected portion(s) of the Software, Patches, or communication to Customer of a workaround that gives Customer the ability to achieve substantially the same functionality as would be obtained without the Error, as determined by Ontrack.
1.1.4 Ontrack Updates, Patches and bug fixes are only effective on the latest version of the Software. For clarity, the latest version of the Software is a version of the Software that has been updated with all the most current Updates and Patches released or made available for such version of the Software. If Customer has not incorporated all available Updates, Patches and bug fixes to the Software, any subsequently released Patches, Updates or bug fixes may not be effective or usable on such Software.
1.1.5 Ontrack shall have no obligation to investigate or correct problems (including Errors) that cannot be reproduced by Ontrack based on information provided by Customer; or that are due to a breach by Customer of the terms of the License Agreement; or that cannot be remedied due either to the operational characteristics of the computer equipment on which the Software is used; or to modifications to the Software made by Customer or any third party. Ontrack will use commercially reasonable efforts to provide the Maintenance Services under this Maintenance Agreement; however, Customer acknowledges that Ontrack cannot guarantee that every question, problem, issue or Error reported by Customer can or will be resolved. Nothing in this Agreement shall expand or add to any warranty for the Software set forth in the License Agreement.
2. Maintenance Fee and Payment
2.1 Customer will pay Ontrack the non-refundable fee(s) set forth in the customer Order within 30 (thirty) days of acceptance of the Order by Ontrack. Customer is responsible for the payment of any goods or sales taxes included on the Order. Ontrack will accept purchase order numbers (“PO”) provided the PO is provided prior to maintenance activation. Ontrack reserves the right to suspend any maintenance or provide any technical support, including Software Updates, if payment is not made when due.
3. Term and Termination.
3.1 Term. This Maintenance Agreement shall commence on acceptance of the Order by Ontrack and continue for the periods specified in the Order.
3.2 Termination. This Maintenance Agreement shall terminate: (i) immediately upon termination or expiration of Customer’s right to use the Software, including a breach by Customer of either this Maintenance Agreement or the License Agreement; (ii) immediately upon expiration of the then-current term of maintenance as specified in the Order. (iii) immediately upon Customer’s failure to pay in accordance with this Maintenance Agreement; or (iv) on written notice by Ontrack if Customer has breached this Maintenance Agreement or the License Agreement and such breach is not cured within 14 (fourteen) days . Ontrack shall be entitled terminate this Maintenance Agreement on written notice in the event of a breach by Customer incapable of being cured. Ontrack shall be entitled to suspend the Maintenance Services if an invoice remains unpaid by Customer when due.
4. Warranty and Remedies
4.1 Ontrack warrants that the Maintenance Services shall be provided to generally accepted industry standards, provided that: (a) the Software has not been modified, changed, or altered by anyone other than Ontrack ; (b) the operating environment, including both hardware and systems software, meets Ontrack’s recommended specifications; (c) the computer hardware is in good operational order and is installed in a suitable operating environment; (d) Customer promptly notifies Ontrack of any technical problem relating to the Software; (e) Customer provides adequate troubleshooting information and access so that the Ontrack can identify and address the problems; and (f) all fees due to Ontrack have been paid.
4.2 THERE ARE NO OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THIS MAINTENANCE AGREEMENT, AND THE MAINTENANCE SERVICES TO BE PROVIDED BY ONTRACK UNDER IT INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES AND AGREES THAT UNDER NO CIRCUMSTANCES SHALL ONTRACK OR ANY OF ITS AGENTS BE LIABLE FOR ANY LOSS, COST, EXPENSE, OR DAMAGE TO CUSTOMER IN ANY AMOUNT WHICH EXCEEDS THE ANNUAL MAINTENANCE FEE SET FORTH IN ANY ORDER . IN NO EVENT SHALL ONTRACK OR ANY OF ITS AGENTS BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL, CONSEQUENTIAL DAMAGES OR SIMILAR DAMAGES, INCLUDING ANY LOST PROFITS OR LOST DATA ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE EVEN IF ONTRACK OR ITS AGENTS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4.3 CUSTOMER WILL INDEMNIFY, DEFEND, AND HOLD HARMLESS ONTRACK AND ITS AGENTS AGAINST ANY LOSS, DAMAGE, EXPENSE, OR COST, INCLUDING REASONABLE ATTORNEYS’ FEES, ARISING OUT OF ANY CLAIM, DEMAND, PROCEEDING OR LAWSUIT RELATED TO CUSTOMER’s UNAUTHORIZED USE OR MISUSE OF THE SOFTWARE AND/OR THE MAINTENANCE SERVICES.
5. Customer Responsibilities
5.1 The Maintenance Services are dependent upon the co-operation of Customer and the quality of information that Customer can provide. Therefore, Customer agrees to provide, at its own cost, all reasonable assistance and cooperation as requested by Ontrack during the provisioning of the Maintenance Services.
5.2 Customers shall notify Ontrack of problems by email or phone and will provide all relevant information known to Customer, and as requested by Ontrack, as well as sufficient support and access to the user of the Software to determine if a problem is attributable to an Error and, if applicable, to correct any Errors and determine if an Error has been corrected. Such problem notice must contain sufficient information on computer-readable media, if practicable, for Ontrack to reproduce the problem. Thereafter, Customer will keep Ontrack notified of any additions or changes to such information. Customer shall promptly respond to Ontrack requests for additional information or assistance.
6. Confidentiality
6.1 In the event either party obtains access to the Confidential Information (defined below) of the other party in the course of performing this Maintenance Agreement, the party obtaining such information shall maintain the confidentiality of such information in the same manner it maintains the confidentiality of its own similar Confidential Information, but in no event with less than reasonable care. “Confidential Information” of either party means any information disclosed on written or magnetic media during the Maintenance Services that is marked “confidential” or with a similar legend at the time of disclosure to the receiving party. Notwithstanding the foregoing, all Updates, Patches, and any software that may be provided by Ontrack pursuant to this Maintenance Agreement shall be deemed Confidential Information without regard to whether such items are marked “confidential” or with a similar legend. Confidential information shall not include any information that is (a) published or otherwise available to the public other than by breach of this Maintenance Agreement; (b) rightfully received by the receiving party from a third party without confidentiality limitations; (c) independently developed by the receiving party without reference to the Confidential Information; (d) known to the receiving party prior to its first receipt of such information from the disclosing party; or (e) hereinafter disclosed by the disclosing party to a third party without restriction on disclosure. If any Confidential Information must be disclosed to any third party by reason of legal, accounting or regulatory requirements beyond the reasonable control of the receiving party, the receiving party shall promptly notify the disclosing party of the order or request and permit the disclosing party (at its own expense) to seek an appropriate protective order. This Maintenance Agreement shall not be construed to prohibit, and Ontrack shall be entitled to use for any purpose, including without limitation use in development, manufacture, promotion, sale, support and maintenance of Ontrack’s or its customers’ products and services any information received from Customer in association with the support services described in this Maintenance Agreement that may be retained as know-how, ideas, processes or expertise in the unaided memories of Ontrack’s personnel.
7.Right to Work Product
All Updates, Patches, Live Support, Error corrections, enhancements, new releases, and any other work product created by Ontrack in connection with the Maintenance Services provided hereunder (“Work Product”) are and shall remain the exclusive property of Ontrack. Such Work Product shall be considered as Software, and subject to the terms and conditions contained herein and in the License Agreement.
8. General
8.1 Each party acknowledges that this Maintenance Agreement is the complete and exclusive statement of the agreement between the parties as to the Maintenance Services, and shall supersede all prior proposals, understandings and all other agreement, oral and written, between the parties relating to the Maintenance Services. If there is a conflict between the terms contained in this Maintenance Agreement and the terms of the License Agreement, the terms of the License Agreement shall prevail. This Maintenance Agreement may not be modified or altered except by a written instrument duly executed by the Parties.
8.2 This Maintenance Agreement and any performance hereunder shall be governed by and construed in accordance with the laws of the State of Minnesota without regard to its conflict of laws rules.
8.3 If any provision of this Maintenance Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby.
8.4 The Customer may not subcontract, assign, or transfer its rights, duties or obligations under this Maintenance Agreement to any person or entity, in whole or in part, without the prior written consent of Ontrack.
8.5 The waiver or failure of either party to exercise, in any respect, any one right provided for herein shall not be deemed a waiver of any other right granted hereunder.