SOFTWARE LICENSE AGREEMENT
Idera, Inc.
2950 North Loop Freeway West
Suite 700
Houston, Texas 77092
Phone: (713) 862-5250; Fax: (713) 862-5210

BY PROCEEDING TO DOWNLOAD, INSTALL OR USE THE SOFTWARE IN WHICH THIS AGREEMENT IS ELECTRONICALLY EMBEDDED OR BY OBTAINING A LICENSE KEY FOR THE SOFTWARE, YOU HEREBY ACKNOWLEDGE AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS.  IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, THEN CLICK “DO NOT ACCEPT,” DO NOT INSTALL OR USE THE SOFTWARE AND DELETE THE SOFTWARE FROM YOUR COMPUTER SYSTEM.  BY INSTALLING OR USING THE SOFTWARE OR BY CLICKING ON “ACCEPT” YOU ACKNOWLEDGE AND AGREE THAT ON BEHALF OF YOURSELF AND YOUR EMPLOYER YOU HAVE READ THIS SOFTWARE LICENSE AGREEMENT CAREFULLY, THAT YOU AND YOUR EMPLOYER AGREE TO BE BOUND BY THIS AGREEMENT AND THAT IF APPLICABLE YOUR EMPLOYER HAS INFORMED YOU OF THE RELEVANT PROVISIONS OF THIS AGREEMENT WHICH MAY BE APPLICABLE TO YOU.  THIS AGREEMENT, SHALL GOVERN YOUR INSTALLATION AND USE OF THE SOFTWARE IN WHICH THIS AGREEMENT IS ELECTRONICALLY EMBEDDED UPON YOUR AGREEMENT TO PURCHASE SUCH SOFTWARE.  IDERA URGES YOU TO CAREFULLY READ THIS AGREEMENT AND ASSESS YOUR USE OF THE SOFTWARE PRIOR TO INSTALLING OR USING THE SOFTWARE OR MAKING ANY DECISION TO PURCHASE IT.

THIS SOFTWARE LICENSE AGREEMENT, dated as of the date of Customer’s purchase of a permanent License Key for use the Licensed Software, between Idera, Inc., a Texas corporation (“Idera”), and the customer set forth on the purchase order pursuant to which the licenses for the Licensed Software were purchased (“Customer”), sets forth the terms and conditions whereby Idera agrees to provide to Customer and Customer agrees to acquire from Idera one or more licenses to use certain software, documentation and maintenance services related thereto, owned or licensed by Idera,  as set forth on the Purchase Orders delivered in connection with this Agreement.  To the extent any terms or conditions contained in the Purchase Order conflict with the terms or conditions contained in this Agreement, the terms and conditions of the Purchase Order shall supersede only those conflicting terms or conditions contained in this Agreement and only to the minimum extent necessary to harmonize the terms in such Purchase Order with the terms contained herein.  The Purchase Order together with the terms and conditions of this Agreement, shall constitute and be construed as a single agreement consisting of the terms and conditions contained in the Purchase Order together with the terms of this Agreement.  This Agreement specifically supersedes and replaces the terms and conditions of all prior agreements between Idera and Customer, including, but not limited to, any shrink-wrap agreements, click-wrap agreements or any demo or trial agreements which may accompany or are embedded in Idera’s products or which have been previously in force between the parties.  In consideration of the mutual promises and agreements contained herein, the parties hereto also agree as follows:

GENERAL TERMS AND CONDITIONS
1.    Definitions – 
(a)  “Agreement” means this software license agreement, together with all Exhibits, Schedules, Annexes, Purchase Orders made a part hereof in accordance with the terms of this Agreement and all amendments, modifications, supplements and alterations thereto effected in accordance with the terms of this Agreement.

(b)  “Confidential Information” means all technical and non-technical information in both tangible and intangible form, including, but not limited to, product design information, software code, technical information, customer information, cost and pricing information, financial information, the terms of this Agreement and the results derived from or methodology employed by Customer in conducting any benchmark testing of the Licensed Software; provided that the term “Confidential Information” shall not include information which the recipient can show by reasonable proof (i) to have been known by the recipient prior to the time of disclosure by the disclosing party, (ii) to have become part of the public domain through no fault or breach of this Agreement by the recipient, (iii) to have been disclosed to the recipient in good faith by a third party who is not under any obligation of confidence or secrecy to the disclosing party at the time such third party discloses the information to the recipient or (iv) to have been compelled to be produced by a court of competent jurisdiction, provided that the recipient shall first give notice to the disclosing party of any such request or order of the court to give the disclosing party an opportunity to contest or limit said request or order of the court.

(c)  “Error” means any error, defect or omission that (i) is discovered in the Licensed Software, (ii) is reproducible and (iii) prevents its operation substantially in accordance with the Licensed Documentation.

(d)  “Licensed Documentation” means the published user manuals that Idera makes generally available for the Licensed Software.

(e)  “Licensed Material” means the Licensed Software and the Licensed Documentation.

(f)  “Licensed Software” means the machine-readable object code version of (i) the software specified on each Purchase Order, whether embedded on disc, tape, internet download site or other media and (ii) all Updates for the Licensed Software that Customer is entitled to receive in connection with its receipt of Maintenance Services pursuant to Section 4 of this Agreement.

(g)  “Maintenance Services” means the technical support services provided by Idera pursuant to Section 4 hereof.

(h)  “Maintenance Term” means the period of time for which Customer has purchased Maintenance Services, as evidenced by the Purchase Order executed and delivered by Idera and Customer in connection therewith, together with all renewals effected in accordance with Section 4 of this Agreement.

(i)  “Purchase Order” means (i) Idera’s standard price quote, purchase order, order form or purchase confirmation, as such document may be amended, supplemented or modified from time to time in accordance with this Agreement or (ii) any other non-Idera price quote, purchase order, order form or purchase confirmation delivered by Customer to Idera but solely to the extent permitted by and delivered in accordance with Section 16.

(j)  “Update” means any revision, enhancement, improvement or modification to or programming fix for the Licensed Software or Licensed Documentation which Idera makes generally available, incorporates into and makes a part of the Licensed Software or Licensed Documentation and does not separately price or market.
2.    LICENSE – 
(a)  Use – Subject to the terms and conditions of this Agreement, including, but not limited to the applicable licensing restrictions set forth in Section 2(b) below, and subject further to Customer’s full compliance herewith and according to the scope, time period and other terms indicated on the applicable Purchase Order delivered in connection with this Agreement, Idera hereby grants Customer and Customer hereby accepts from Idera, a perpetual, non-exclusive and non-transferable right and license to install the Licensed Software on computer hardware that is owned or operated by or on behalf of Customer, to access and use the Licensed Material in accordance with the applicable restrictions and conditions contained in this Agreement and to copy the Licensed Material as permitted by this Agreement.  Customer’s right to use the Licensed Material shall extend to (i) use by third parties under contract with Customer to provide outsourcing services for Customer's own internal business operations and (ii) solely in the case of a license to use Idera’s Server Backup Manager SE software product, Customer’s provision of data back-up and protection services to its end user customers using servers and systems owned and controlled by Customer; provided, in the case of both clauses (i) and (ii) above, such third parties have agreed to abide by the terms of this Agreement, including the confidentiality provisions contained herein.

(b)  License Usage and Restrictions– Customer acknowledges and agrees that, as between Customer and Idera, Idera owns and shall continue to own all right, title, and interest in and to the License Material, including associated intellectual property rights under copyright, trade secret, patent, or trademark laws. This Agreement does not grant Customer any ownership interest in or to the Licensed Material, but only a limited right and license to use the Licensed Materials in accordance with the terms of this Agreement and each applicable Purchase Order.  Customer further acknowledges and agrees that the licenses granted hereunder and the restrictions applicable to Customer’s installation and use of the License Software will vary according to the type of Licensed Software purchased by Customer. Customer hereby agrees to the following license restrictions and conditions applicable to the Licensed Software set forth in the Purchase Orders delivered by Customer under this Agreement:

(i)	For all Licensed Software made generally available by Idera on a “per-instance” basis, Customer may install, operate and use such Licensed Software on one (1) instance per license purchased by Customer;

(ii)	For all Licensed Software made generally available by Idera on a “per-server” basis, Customer may install, operate and use such Licensed Software on one (1) physical or one (1) virtual server per license purchased by Customer;

(iii)	For all Licensed Software made generally available by Idera on a “per-user” or “per-seat” basis, Customer may install and operate such Licensed Software on any number of physical servers or virtual servers or install and use any number of instances of the Licensed Software but Customer shall not access and use such Licensed Software by more than one (1) user per license purchased by Customer;

(iv)	For all Licensed Software made generally available by Idera on a “Sharepoint-Farm-basis” Customer may install, operate and use the Licensed Software only on those physical servers or virtual servers necessary to run one (1) instance of a Sharepoint software application; and

(v)	solely to the extent a license is specified in writing on a Purchase Order as a “Site-License,” Customer may install, operate and use the Licensed Software on any number of instances, physical servers, virtual servers or Sharepoint Farms physically located at the building or computing facilities specified in the Purchase Order by address as the site and may do so with any number of users.

For purposes of this Agreement, a “Sharepoint Farm” is a collection of one or more SharePoint servers and one or more SQL servers bound together by a single configuration database in SQL.  In no event shall Customer install, operate use or access the Licensed Software in contravention of the foregoing restrictions applicable to the Licensed Software. 

(c)  Copies & Disaster Recovery –  Customer may make a reasonable number of back-up archival copies of the Licensed Software. In the event of any outage that results in the complete failure of the computer system upon which Customer has installed the Licensed Software, Customer’s right to use the Licensed Software shall include, during the pendency of such outage, the temporary right to use the Licensed Software in a replacement computing environment substantially similar to the original computing environment upon which the Licensed Software was installed immediately prior to such outage. Customer shall reproduce all confidentiality and proprietary notices on each of the copies permitted hereunder and maintain an accurate record of the location of each of the copies.  Customer shall not otherwise copy or duplicate the Licensed Material.  Customer shall not reverse engineer, disassemble, translate, modify, adapt, or decompile the Licensed Material or apply any procedure or process to the Licensed Material in order to ascertain, derive, and/or appropriate the source code or source listings for the Licensed Software or any trade secret or other proprietary information contained in the Licensed Software.

(d)  Maintenance Optional –Customer’s right to use the Licensed Software shall survive any election by Customer to terminate or not obtain Maintenance Services from Idera.

(e)  Other Services – All licenses and Maintenance Services purchased by Customer in respect of the Licensed Material shall be governed by this Agreement, together with the applicable Purchase Orders delivered hereunder.  Unless otherwise agreed by the parties in writing, all other services purchased by Customer in respect of the Licensed Software, if any, including implementation services, training services and professional services (collectively, “Ancillary Services”), shall be governed solely by Idera’s standard professional services agreement, and acceptance of the Licensed Material shall not be contingent upon Customer’s acceptance of any such Ancillary Services. 
3.    DELIVERY AND PAYMENT TERMS – 
(a)  Delivery – All Licensed Material shall be delivered by Idera to Customer via electronic delivery using a secure internet download site.  Ownership of the all licenses purchased hereunder and risk of loss for the related Licensed Materials shall be deemed to have passed to Customer once Idera has made the Licensed Material available for download by Customer, notified Customer of the availability of the Licensed Material for download and provided Customer will all License Keys necessary for the installation and operation of the Licensed Software.

(b)  Payment -- Upon execution of each Purchase Order by both parties, Idera shall deliver an invoice to Customer specifying the license fees and Maintenance Services fees payable pursuant to such Purchase Order.  Customer shall pay all license fees and Maintenance Services fees specified therein within thirty (30) days of Customer’s receipt of such invoice.  All fees payable by Customer in respect of such Ancillary Services may be separately invoiced.  Customer’s payment obligation with respect to all license fees and Maintenance Services fees owing hereunder shall be independent of the provision of Ancillary Services, whether or not such Ancillary Services are separately invoiced.  Any late payment of any amount owing hereunder shall accrue interest at a rate equal to the lesser of (i) 15% per annum and (ii) the maximum rate permitted by law.

(c)  Taxes – All payments referred to in this Agreement are exclusive of value added tax, sales tax and any other applicable taxes, duties or imposts which (with the exception only of those based on Idera’s income) shall also be payable by Customer in accordance with applicable law.
4.    MAINTENANCE – Idera does not warrant that the Licensed Software will operate error-free or may be used error-free.  Upon Customer’s payment of the Maintenance Services fees associated with the Maintenance Term purchased by Customer for the Licensed Software specified in each Purchase Order, Idera shall provide Maintenance Services in accordance with this Section 4 and in accordance with the additional Maintenance Services terms specified in such Purchase Order.  

(a)  Maintenance Agreement - Idera or its authorized representative will provide Maintenance Services for the Licensed Software during each Maintenance Term.  Maintenance Services includes problem determinations, reasonable problem resolutions, provisioning of software program temporary fixes and new releases.  Maintenance Services shall also include the additional Maintenance Service terms expressly set forth in writing in each Purchase Order or purchase confirmation, which are hereby incorporate herein by reference. Maintenance Services shall entitle Customer to receive, at no additional cost, all Updates. 

(b)  Additional Maintenance Term – Upon expiration of each Maintenance Term, Maintenance Services shall automatically renew for an additional 12-month Maintenance Term and Idera will invoice Customer unless Idera or its authorized representatives are notified by Customer in writing at least sixty (60) days prior to the expiration of the current Maintenance Term that Customer will not purchase Maintenance Services for another Maintenance Term.

(c)  Reinstatement – If Customer terminates Maintenance Services or allows Maintenance Services to lapse, Customer may, at its option, reinstate Maintenance Services within one year of such termination or lapse by providing notice to Idera and making payment of Idera’s then-current list maintenance fees for the upcoming 365-day period plus an amount equal to the maintenance fees that would have accrued during the period subsequent to such termination or lapse, had Customer not terminated Maintenance Services or allowed such Maintenance Service to lapse.
5.    PROPRIETARY RIGHTS – Customer shall not acquire, by virtue of this Agreement, any right or license other than as expressly provided herein.  Customer shall not reproduce the Licensed Material or other confidential or proprietary information of Idera, except as provided in this Agreement.  All proprietary rights in and to the Licensed Material, all derivatives, translations, modifications, adaptations, improvements, enhancements or developments thereof and all confidential or proprietary information of Idera, including without limitation, all rights under and with respect to patents, copyrights, trademarks and rights under the trade secret laws of any jurisdiction shall remain the property of Idera or its applicable licensor, whether recognized by or perfected under applicable local law. Customer shall promptly notify Idera of any infringement of Idera’s proprietary rights of which it becomes aware.
6.    LIMITED WARRANTIES

(a)  Warranty - Idera warrants to Customer that during the first thirty (30) days after purchase of each Licensed Software (the “Warranty Period”) such Licensed Software will perform substantially as described in the accompanying Licensed Documentation.  Idera does not warrant that (i) the Licensed Software will satisfy or may be customized to satisfy any of Customer's requirements or any other particular use or (ii) the use of the Licensed Software will be uninterrupted or error-free.  Laws from time to time in force may imply warranties that cannot be excluded or can only be excluded to a limited extent.  This Agreement shall be read and construed subject to any such statutory provisions.

(b)  Remedies – If (i) at any time during a Maintenance Term, the Licensed Software contains Errors which make the Licensed Software unable to perform substantially as described in the accompanying Licensed Documentation or (ii) during the Warranty Period, Idera breaches the warranty set forth in clause (a) above, then Customer shall promptly notify Idera of such Error or breach and Idera shall (A) use all commercially reasonable efforts to correct such Error or breach within thirty (30) days of notification or (B) provide Customer within thirty (30) days of notification with a plan acceptable to Customer  for correcting such Error or breach.  If such Error or breach is not corrected or if an acceptable plan for correcting such Error or breach is not established within such thirty (30) day period, Idera shall replace the defective Licensed Software or, if not practicable, accept the return of the defective Licensed Software and refund to Customer the amount paid for the defective Licensed Software, less depreciation based on a 3-year straight line schedule. Idera’s obligations under this Section 6(b) shall be waived in the event such Error or breach is due to (I) any defect in or misconfiguration of  the computer hardware upon which the Licensed Software is installed, (II) improper handling or use of the software media by Customer, or (III) an unauthorized alteration, revision or configuration of the Licensed Software or to Customer’s computer system by Customer or its employees.  Customer acknowledges that this Section 6(b) sets forth Customer's sole and exclusive remedy, and Idera's and its authorized representatives’ sole and exclusive liability, for any breach of warranty, Error or failure of the Licensed Software to function properly.

(c)  Disclaimer - EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ALL WARRANTIES, REPRESENTATIONS, INDEMNITIES AND GUARANTEES WITH RESPECT TO THE LICENSED MATERIAL, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY IDERA OR ITS AUTHORIZED REPRESENTATIVES OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE) ARE HEREBY OVERRIDDEN AND DISCLAIMED.
7.    INDEMNITY
(a)  Indemnity –Subject to this Section 7 and Section 8 below, Idera agrees to indemnify, defend and hold harmless Customer from and against all claims, damages, losses, liabilities and expenses (including, but not limited to, reasonable attorneys’ fees) arising out of any claim by a third party asserting that the Licensed Material or any of Customer’s use thereof, infringes upon any third party's patent, copyright or trademark, provided that (i) Customer promptly notifies Idera in writing no later than thirty (30) days after Customer’s notice of any potential claim, (ii) Customer permits Idera to defend, compromise or settle the claim, and provided further that no settlement intended to bind Customer shall be made without Customer’s prior written authorization and (iii) Customer gives Idera all available information, reasonable assistance, and authority to enable Idera to do so.  

(b)  Alternative Remedy - If a claim described in Paragraph 7(a) may or has been asserted, Customer will permit Idera, at Idera's option and expense, to (i) procure the right to continue using the Licensed Material, (ii) replace or modify the Licensed Material to eliminate the infringement while providing functionally equivalent performance or (iii) accept the return of the Licensed Material and refund to Customer the amount actually paid to Idera or its authorized representative for such Licensed Material less depreciation based on a 3-year straight-line depreciation schedule.

(c)  Limitation - Idera shall have no indemnity obligation to Customer hereunder if the violation or infringement claim results from (i) a correction or modification of the Licensed Material not provided by Idera or its authorized representative, (ii) the failure to promptly install an Update, (iii) the combination of the Licensed Software with other non-Idera software and (iv) continuing the allegedly infringing activity after receiving written notice of such infringement claim from Idera.
8.    NO CONSEQUENTIAL DAMAGES - UNDER NO CIRCUMSTANCES WILL IDERA OR ITS AUTHORIZED REPRESENTATIVES BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS BY CUSTOMER OR ANY THIRD PARTY (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, PROFITS, USE OF MONEY OR USE OF THE PRODUCTS, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, BREACH OF ANY INTELLECTUAL PROPERTY RIGHT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, EXCEPT ONLY IN THE CASE OF PERSONAL INJURY WHERE AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIABILITY.  IN NO EVENT WILL THE AGGREGATE LIABILITY INCURRED IN ANY ACTION OR PROCEEDING BY IDERA OR ITS AUTHORIZED REPRESENTATIVE EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE SPECIFIC LICENSED SOFTWARE THAT DIRECTLY CAUSED THE DAMAGE.
9.    CONFIDENTIALITY 

(a)  Confidentiality. – Customer acknowledges that the Products incorporate confidential and proprietary information developed or acquired by or licensed to Idera and that all results of testing of the Products, whether performed by Customer or another third party, are confidential.  In no event will Customer publish or disclose the results of any testing or performance specifications of the Product without Idera’s express prior written consent.  Each party shall take all reasonable precautions necessary to safeguard the confidentiality of all Confidential Information disclosed by the other party, including those precautions (i) taken by the disclosing party to protect it's own Confidential Information and (ii) which the disclosing party or its authorized representative may reasonably request from time to time. Neither party shall allow the removal or defacement of any confidentiality or proprietary notice placed on the Confidential Information disclosed by the disclosing party. The placement of copyright notices on Confidential Information shall not constitute publication or otherwise impair their confidential nature of such information.

(b)  Disclosure - If an unauthorized use or disclosure of the disclosing party’s Confidential Information occurs within the recipient party’s enterprise, the recipient party will immediately notify the disclosing party or its authorized representative  and  take, at recipient party’s expense, all steps which  may  be  available  to  recover  such Confidential Information and to prevent its subsequent unauthorized use or dissemination.  
10.    TERMINATION – Upon prior written notice to Idera, Customer may terminate this Agreement without any right to refund, except as otherwise expressly set forth in this Agreement. If Customer or any of Customer’s employees, consultants, authorized representatives or permitted third parties breach any term or condition of this Agreement, Idera may terminate this Agreement, without judicial or administrative resolution or obligation to refund. This Agreement will terminate automatically if Customer ceases to do business, becomes insolvent, goes or is put into receivership or liquidation, passes a resolution for its winding up (other than for the purpose of reconstruction or amalgamation) or for any of the foregoing, makes an arrangement for the benefit of its creditors, enters into bankruptcy, suspension of payments, moratorium, reorganization or any other proceeding that relates to insolvency or protection of creditors’ rights or takes or suffers any similar action in consequence of debt.  Upon the termination of this Agreement for any reason, all rights granted to Customer hereunder will cease, and Customer will promptly (i) purge the Licensed Software and any related Updates from  all of Customer’s computer systems, storage media and other files, (ii) destroy the Licensed Material and all copies thereof and (iii) deliver to Idera an affidavit certifying that Customer has complied with these termination obligations.  The provision of Sections 7 through 12 shall survive the termination of this Agreement.
11.    U.S. EXPORT RESTRICTIONS - Customer acknowledges that the Licensed Materials and all related technical information, documents and materials are subject to export controls under the U.S. Export Administration Regulations.  Customer covenants and agrees to comply with all import and export control regulations of the United States with respect to the Licensed Material.  Customer acknowledges that it may not re-export or divert the Licensed Material or any related technical information, document or material, or direct derivatives thereof, to any country set forth on the U.S. Department of Commerce’s list of T-5 countries (currently, Cuba, Iran, North Korea, Sudan and Syria), including any future changes to the government’s list of T-5 countries.
12.    EQUITABLE RELIEF – The parties recognize that Sections 5, 9 and 11 are necessary for the protection of the business and goodwill of the parties and are considered by the parties to be reasonable for such purpose.  The parties agree that any breach of such Sections would cause the other party substantial and irreparable damage and therefore, in the event of any such breach, in addition to other remedies which may be available, the non-breaching party shall have the right to seek specific performance and other injunctive and equitable relief in a court of law.
13.    LICENSE KEY & USE REPORTING - Customer acknowledges that a security code owned and controlled by Idera (the "License Key") is required to render the Licensed Software operational on Customer’s computer hardware. Once utilized to install the Licensed Software on Customer’s computer hardware, no other security code will be required for the Licensed Material to operate on such computer hardware in accordance with the terms and restrictions contained in this Agreement. Customer shall not attempt to crack, alter or otherwise derive the License Key. Idera shall promptly provide Customer with all necessary License Keys upon purchase of the Licensed Software or upon any authorized transfer of the Licensed Software to any other hardware equipment permitted under Section 2(b) of this Agreement.  Idera reserves the right to gather data on license usage by Customer for each item of Licensed Software, including License Key numbers, server IP addresses, domain counts and other information deemed relevant, to ensure that the Licensed Software is being used in accordance with the terms of this Agreement. Idera expressly prohibits domain count overrides without prior written approval. Customer hereby consents to Idera gathering such usage information and agrees not to block, electronically or otherwise, the transmission of data required for compliance with this Agreement.  Any unauthorized use of the Licensed Software by Customer or other use by Customer in violation of the restrictions contained herein shall be deemed a material breach of this Agreement. Idera reserves the right to remedy any such breach immediately upon discovery, by charging Customer the then current list price for any usage of the Licensed Software in excess of the licenses purchased by Customer, or by any other means necessary. 
14.    UPGRADES - All pricing is determined based upon Idera’s then-current list price at the time of purchase.  Copies of Idera’s price list are available to the Customer upon request.  If Customer adds additional user profiles, CPUs or instances, as applicable, above the maximum number prescribed in Idera’s price list, then Customer will immediately notify Idera and deliver a Purchase Order to Idera specifying the number of additional user profiles, CPUs or instances, as the case may be, and will pay Idera an additional charge based on Idera’s price list in effect at such time.
15.    ENFORCEABILITY - If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, void, invalid or illegal, that provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
16.    ENTIRE AGREEMENT

(a)  Customer acknowledges that it has read this Agreement, understands it and agrees to be bound by its terms.  Customer and Idera further agree that, subject to clause (b) below, this Agreement, together with all Purchase Orders delivered in connection herewith and all Exhibits, Schedules and Annexes hereto, is the complete and exclusive statement of the agreement between Customer and Idera and supersedes all proposals, oral or written, and all other communications between the parties relating to the subject matter of this Agreement, including any shrink-wrap agreements, click-wrap agreements or demo or trial agreements which may accompany the Licensed Material or which may have been previously in force between the parties. Subject to clause (b) below, this Agreement may not be amended, modified, supplemented or altered except by a written agreement that is signed by both parties.

(b)  UNDER NO CIRCUMSTANCES MAY THE TERMS OF THIS AGREEMENT OR ANY IDERA PURCHASE ORDER BE AMENDED, MODIFIED, SUPPLEMENTED, ALTERED, SUPERSEDED OR REPLACED BY ANY NON-IDERA INVOICE OR NON-IDERA PURCHASE ORDER OR OTHER SIMILAR INSTRUMENT DELIVERED BY CUSTOMER TO IDERA.  EACH PARTY ACKNOWLEDGES AND AGREES THAT, AS A CONVENIENCE TO CUSTOMER AND ONLY FOR CUSTOMER’S INTERNAL ACCOUNTING PROCEDURES, CUSTOMER MAY DELIVER TO IDERA A CUSTOMER INVOICE OR CUSTOMER PURCHASE ORDER OR OTHER SIMILAR DOCUMENT FOR ANY TRANSACTION CONTEMPLATED HEREUNDER AND THAT NO ACTION BY IDERA, INCLUDING IDERA’S DELIVERY OF ANY LICENSED MATERIALS OR ACCEPTANCE OF PAYMENT, SHALL BE DEEMED TO BE ACCEPTANCE OF ANY OF THE TERMS OR CONDITIONS CONTAINED IN SUCH CUSTOMER INVOICE OR CUSTOMER PURCHASE ORDER OR OTHER SIMILAR INSTRUMENT AND SUCH TERMS AND CONDITIONS SHALL BE VOID AND OF NO FORCE OR EFFECT, UNLESS ACCEPTED BY IDERA PURSUANT TO A WRITTEN INSTRUMENT SIGNED BY BOTH PARTIES.
17.    MISCELLANEOUS
(a)  Customer may not assign, delegate or otherwise transfer this Agreement or any of its rights or obligations hereunder to any other person or entity without Idera’s prior written consent. In the Event of any merger of Customer or a sale of substantially all of the assets of Customer in which Customer is not the surviving entity, Customer may assign or transfer any licenses granted under this Agreement prior to the date of such merger or sale; provided, however, Customer may not transfer any other rights or obligations hereunder, including but not limited to the right to purchase Maintenance Services or additional Licensed Material under the terms of this Agreement. This Agreement shall be binding upon the parties hereto and shall inure to the benefit of the parties hereto and their respective permitted successors and assigns.

(b)  All notices or approvals required or permitted under this Agreement must be given in writing and delivered to the appropriate party at the address set forth in this Agreement or in any Purchase Order delivered in connection with this Agreement.

(c)  The waiver of compliance with or breach of any term or condition of this Agreement or the failure of a party to exercise any right under this Agreement shall in no event constitute a waiver as to any other failure to comply or breach, whether similar or dissimilar in nature, or prevent the exercise of any right under this Agreement. Unless otherwise specified herein, the rights and remedies of Idera set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to it at law or in equity.

(d)  THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW RULES.  IDERA AND CUSTOMER HEREBY IRREVOCABLY AGREE ON BEHALF OF THEMSELVES THAT THE SOLE AND EXCLUSIVE JURISDICTION AND VENUE FOR ANY LITIGATION ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF SHALL BE IN AN APPROPRIATE FEDERAL OR STATE COURT IN THE STATE OF TEXAS LOCATED IN HARRIS COUNTY.

(e)  Unless otherwise specified herein, the rights and remedies of Idera set forth in this Agreement are not exclusive and are in addition to any other rights and remedies available to it at law or in equity.

(f)  This Agreement is not intended to be nor shall it be construed as a joint venture, association, partnership or other form of business organization or agency relationship.

(g)  Headings used in this Agreement are for reference purposes only and shall not be used to modify the meaning of the terms and conditions of this Agreement.  This Agreement may be executed in counterparts, all of which shall constitute one single agreement between the parties hereto.

(h)  In consideration of the mutual covenants contained herein, including the rights and licenses granted to Customer herein, the parties hereto do hereby agree that for a period of two years following Customer’s most recent purchase of any licenses or services, including Maintenance Service, from Idera or its authorized representative, Customer shall not solicit, induce, hire, engage, or attempt to hire or engage any employee of Idera, or in any other way interfere with Idera’s contractual or employment relations with any of its employees, nor will Customer hire or engage or attempt to hire or engage any individual who was an employee of Idera at any time during such two-year period.

Copyright 2016, Idera, Inc. SLA Ver. 0101114ns