PLEASE READ THIS AGREEMENT CAREFULLY BEFORE PURCHASING THESE PRODUCTS AND/OR SERVICES. BY PURCHASING THE PRODUCTS AND/OR SERVICES, YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT PURCHASE OR USE THE PRODUCTS AND/OR SERVICES. THIS AGREEMENT SHALL NOT SUPERSEDE ANY OTHER SIGNED AGREEMENT BETWEEN YOU AND PROVIDER THAT EXPRESSLY GOVERNS THIS ORDER.
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and shall not operate to limit the applicability or enforceability of any portion of the Agreement.
This agreement (the “Agreement”) shall govern the purchase of Products and/or Services that you are making (the “Order”) from One Identity Inc. (“Provider”) via Provider’s online ordering system. If you are purchasing as an individual, then you shall be the “Customer” under this Agreement. If you are placing this Order on behalf of an organization, that organization shall be the “Customer” under this Agreement and you represent and warrant that you have the requisite authority to bind that organization to this Agreement.
(a) Definitions. Capitalized terms not defined in context shall have the meanings throughout the Agreement assigned to them below:
(i) “Affiliate” means any legal entity controlling, controlled by, or under common control with a party to this Agreement, for so long as such control relationship exists.
(ii) “Appliance” means a computer hardware product upon which the Software is delivered.
(iii) “Documentation” means the user manuals and documentation that Provider makes available for the Software, and all copies of the foregoing.
(iv) “License Type” means the model by which the Software is licensed (e.g., by server, by mailbox, by managed user) indicated in the applicable Order.
(v) “Maintenance Services” means Provider’s maintenance and support offering for the Products as identified in the Maintenance Services Section below.
(vi) “Product Guide” means the document located at http://oneidentity.com/docs/Product_Guide.pdf that contains the Product Terms.
(vii) “Product Terms” means the terms associated with each License Type for each Product as stated in the Product Guide as of the date of the Order
(viii) “Products” means the Software and Appliance(s) provided to Customer under this Agreement.
(ix) “Services” means the Maintenance Services, Professional Services, or Training Services purchased under this Agreement.
(x) “Software” means the object code version of the software that is provided or made available to Customer pursuant to an Order as well as any corrections, enhancements, and upgrades to such software that are made available to Customer pursuant to this Agreement, and all copies of the foregoing.
(b) Software License. Subject to the terms of this Agreement, Provider grants to Customer, and Customer accepts from Provider, a perpetual (unless otherwise set forth in the Order), non-exclusive, non-transferable (except as otherwise set forth herein) and non-sublicensable license to (i) access and use the quantities of each item of Software identified in the applicable Order within the parameters of the Product Terms associated with the applicable Software and License Type, (ii) make a reasonable number of additional copies of the Software to be used solely for non-productive archival or passive disaster recovery purposes, provided such copies are kept in a secure location and are not used for production purposes unless the primary copy of the Software is not being used for production purposes, and (iii) make and use copies of the Documentation as reasonably necessary to support Customer’s authorized users in their use of the Software (collectively, the “License”). Each License shall only be installed by Customer in the country in which the Software is initially delivered to Customer and Customer shall only use the Software to support the internal business operations of itself and its worldwide Affiliates.
(c) Use by Third Parties. Customer may allow its services vendors and contractors (each, a “Third Party User”) to access and use the Software and Documentation provided to Customer hereunder solely for purposes of providing services to Customer , provided that Customer ensures that (i) the Third Party User’s access to or use of the Software and Documentation is subject to the restrictions and limitations contained in this Agreement, including, but not limited to those in the Export Section, and the applicable Order(s), (ii) the Third Party User cooperates with Provider during any compliance review that may be conducted by Provider or its designated agent, and (iii) the Third Party Users promptly removes any Software installed on its computer equipment upon the completion of the Third Party’s need to access or use the Software as permitted by this Section. Customer agrees that it shall be liable to Provider for those acts and omissions of its Third Party Users which, if done or not done by Customer, would be a breach of this Agreement or an Order.
(d) Restrictions. Customer may not reverse engineer, decompile, disassemble, or attempt to discover or modify in any way the underlying source code of the Software, or any part thereof unless and to the extent (a) such restrictions are prohibited by applicable law and (b) Customer has requested interoperability information in writing from Provider and Provider has not provided such information in a timely manner. In addition, Customer may not (i) modify, translate, localize, adapt, rent, lease, loan, create or prepare derivative works of, or create a patent based on the Products, Documentation or any part thereof, (ii) resell, sublicense or distribute the Products or Documentation, (iii) provide, make available to, or permit use of the Products, in whole or in part, by any third party (except as expressly set forth herein), (iv) use the Products or Documentation to create or enhance a competitive offering or for any other purpose which is competitive to Provider, (v) remove Software that was delivered on an Appliance from the Appliance on which it was delivered and load such Software onto a different appliance without Provider’s prior written consent, or (vi) perform or fail to perform any other act which would result in a misappropriation or infringement of Provider’s intellectual property rights in the Products or Documentation. Each permitted copy of the Software and Documentation made by Customer hereunder must contain all titles, trademarks, copyrights and restricted rights notices as in the original. Customer understands and agrees that the Products may work in conjunction with third party products and Customer agrees to be responsible for ensuring that it is properly licensed to use such third party products. Notwithstanding anything otherwise set forth in this Agreement, the terms and restrictions set forth herein shall not prevent or restrict Customer from exercising additional or different rights to any open source software that may be contained in or provided with the Products in accordance with the applicable open source software licenses which shall be either included with the Products or made available to Customer upon request. Customer may not use any license keys or other license access devices not provided by Provider, including but not limited to “pirate keys”, to install or access the Software.
(e) Proprietary Rights. Customer understands and agrees that (i) the Products are protected by copyright and other intellectual property laws and treaties, (ii) Provider, its Affiliates and/or its licensors own the copyright, and other intellectual property rights in the Products, (iii) the Software is licensed, and not sold, (iv) this Agreement does not grant Customer any rights to Provider’s trademarks or service marks, and (v) Provider reserves any and all rights, implied or otherwise, which are not expressly granted to Customer in this Agreement.
(f) Title, Risk of Loss and Delivery. Provider, its Affiliates and/or its licensors own the title to all Software. Title and risk of loss to an Appliance shall pass from Provider to Customer upon shipment (unless the Appliance is rented, leased or loaned to Customer). Delivery of Products shall be by electronic download or FOB Shipping Point.
(g) Software Warranty. Provider warrants that, for a period of thirty (30) days following the initial delivery of Software pursuant to the Order (the “Software Warranty Period”), (i) the media provided by Provider, if any, on which the Software is recorded will be free from material defects in materials and workmanship under normal use, (ii) the operation of the Software, as provided by Provider, will substantially conform to its Documentation, and (iii) the Software, as provided by Provider, will not contain any viruses, worms, Trojan Horses, or other malicious or destructive code designed by Provider to allow unauthorized intrusion upon, disabling of, or erasure of the Software, except that the Software may contain a key limiting its use to the scope of the License granted, and license keys issued by Provider for temporary use are time-sensitive (the “Software Warranties”). Customer must give written notice to Provider of any breach of the Software Warranties no later than five days following the expiration of the Software Warranty Period.
Customer’s exclusive remedies, and Provider’s sole obligations, for any such breach of these Software Warranties shall be as follows: (A) for the warranty in subsection (i), Provider shall, at its expense, replace any defective media; (B) for the warranty in subsection (ii), Provider shall correct or provide a workaround for reproducible errors in the Software that cause a breach of the warranty within a reasonable time considering the severity of the error and its effect on Customer, or, at Provider’s option, refund the license fees paid for the nonconforming Software upon return of such Software to Provider and termination of the related License(s) hereunder; and (C) for the warranty in subsection (iii), Provider shall provide a copy of the Software that is in conformance with such warranty.
The foregoing Software Warranties shall not apply to any non-conformance (i) that Provider cannot recreate after exercising commercially reasonable efforts to attempt to do so, (ii) caused by misuse of the Software or by using the Software in a manner that is inconsistent with this Agreement or the Documentation, or (iii) arising from the modification of the Software by anyone other than Provider.
(h) Appliance Warranty. Except for an Appliance on which the Privileged Account” family of products (“PA Software”) is delivered (“a PA Appliance”) Appliances are warranted in accordance with the warranty document delivered with the Appliance and/or included on the hardware manufacturers’ website. For the PA Appliance, Provider warrants that (i) for one (1) year following the initial delivery of the PA Appliance following an Order, the PA Appliance will operate in a manner which allows the PA Software installed upon it to be used in substantial conformance with the applicable Software Documentation (the “PA Appliance Warranty” Customer’s exclusive remedies, and Provider’s sole obligations, for any such breach of the PA Appliance Warranty shall be the Privileged Account Appliance Replacement Program or the Appliance Replacement Program(as described in the Product Guide).
(i) Compliance Verification. Customer agrees to maintain and use systems and procedures to accurately track, document, and report its installations, acquisitions and usage of the Software. Such systems and procedures shall be sufficient to determine if Customer’s deployment of the Software is within the quantities, Product Terms, and maintenance releases to which it is entitled. Provider or its designated auditing agent shall have the right to audit Customer's deployment of the Software for compliance with the terms and conditions of this Agreement and the applicable Order(s). Any such audits shall be scheduled at least ten (10) days in advance and shall be conducted during normal business hours at Customer's facilities. Customer shall provide its full cooperation and assistance with such audit and provide access to the applicable records and computers. Without limiting the generality of the foregoing, as part of the audit, Provider may request, and Customer agrees to provide, a written report, signed by an authorized representative, listing Customer's then current deployment of On-Premise Software. If Customer's deployment of the Software is found to be greater than its purchased entitlement to such Software, Customer will be invoiced for the over-deployed quantities at Provider’s then current list price plus the applicable Maintenance Services and applicable over-deployment fees. All such amounts shall be payable in accordance with this Agreement. Additionally, if the unpaid fees exceed five percent (5%) of the fees paid for the applicable Software, then Customer shall also pay Provider's reasonable costs of conducting the audit. The requirements of this Section shall survive for two (2) years following the termination of the last License governed by this Agreement.
(a) Description. Except as otherwise stated in an Order or an amendment to this Agreement, during any Maintenance Period and for the applicable fees, Provider shall:
(i) Make available to Customer new versions and releases of the Software, including Software corrections, enhancements and upgrades, if and when Provider makes them generally available without charge as part of Maintenance Services.
(ii) Respond to communications from Customer that report Software failures not previously reported to Provider by Customer. Nothing in the foregoing shall operate to limit or restrict follow up communication by Customer regarding Software failures.
(iii) Respond to requests from Customer’s technical coordinators for assistance with the operational/technical aspects of the Software unrelated to a Software failure. Provider shall have the right to limit such responses if Provider reasonably determines that the volume of such non-error related requests for assistance is excessive or overly repetitive in nature.
(iv) Provide access to Provider’s software support web site at http://oneidentity.com/support/ (the “Support Site”).
(v) Provide the Privileged Account Appliance Replacement Program, if applicable.
Maintenance Services are available during regional business support hours (“Business Hours”) as indicated on the Support Site, unless Customer has purchased 24x7 Support. The list of Software for which 24x7 Support is available and/or required is listed in the Global Support Guide on the Support Site.
The Maintenance Services for Software that Provider has obtained through an acquisition or merger may, for a period of time following the effective date of the acquisition or merger, be governed by terms other than those in this Section. The applicable different terms, if any, shall be stated on the Support Site.
(b) Maintenance Period. For On-Premise Software, the first period for which Customer is entitled to receive Maintenance Services begins on the date of the initial delivery of the Software following an Order and ends twelve (12) months thereafter unless otherwise set forth below or in the applicable Order (the “Initial Maintenance Period”). Following the Initial Maintenance Period, Maintenance Services for On-Premise Software shall automatically renew for additional terms of twelve (12) months (each, a “Renewal Maintenance Period”) at the prices stated on the Maintenance Renewal Quotation unless the renewal has been cancelled by either party giving written notice, by email or otherwise, to the other at least sixty (60) days prior to the first day of the applicable Renewal Maintenance Period. For purposes of this Agreement, the Initial Maintenance Period and each Renewal Maintenance Period shall be considered a “Maintenance Period.” For the avoidance of doubt, this Agreement shall apply to each Renewal Maintenance Period. Cancellation of Maintenance Services for perpetual Licenses for On-Premise Software will not terminate Customer’s rights to continue to use the On-Premise Software. Maintenance fees shall be due in advance of each Renewal Maintenance Period and shall be subject to the payment requirements set forth in this Agreement. The procedure for reinstating Maintenance Services for On-Premise Software after it has lapsed is posted at https://support.oneidentity.com/essentials/Reinstate-Maintenance-Services.
(i) If, due to factors beyond Customer’s reasonable control, Customer is not able to attend the purchased class (the “Class”), it may so notify Provider in writing and Provider may, in its sole discretion, allow Customer to attend a different Class or send a substitute student who meets the student experience guidelines (which are made available during the registration process).
(ii) Provider may cancel a Class if it has less than the minimum attendance level by providing written notice of the cancellation at least fifteen (15) working days prior to the first day of the Class. In the event of such a cancellation, the fee for the Class will be refunded; however, Provider shall have no liability to Customer for expenses it may have incurred, including but not limited to travel expenses, in preparing to attend such Class.
(iii) At the conclusion of a Class, Provider will provide a test of the material. Failure to pass shall not entitle Customer to a refund of any kind.
(b) Attendees. Each attendee must meet the student experience guidelines, which are made available during the registration process. Customer may substitute one Class attendee for another provided that the substituted person meets such guidelines.
(c) Instructional Materials. Class attendees will receive instructional materials in printed and/or electronic form (the “Materials”). Customer may use and make a reasonable number of copies of the Materials solely and exclusively for its own use in installing and deploying the Software. Provider reserves all rights to such Materials which are not expressly granted to Customer in this Agreement. Customer understands and agrees that (i) the Materials are protected by copyright and other intellectual property laws and treaties, (ii) Provider and/or its suppliers own the title, copyright, and other intellectual property rights in the Materials, and (iii) this Agreement does not grant Customer any rights to Provider’s trademarks or service marks.
(d) Image. Provider may provide a virtual computer image of the Provider products which are the subject of the Class (the “Image”). The Image may only be used in the classroom and may not be copied or removed from the classroom. Any media on which the Image was provided must be returned to Provider prior to the Class attendee’s departure from the Class.
(e) Certification. Some Classes may offer a skill level certification (a “Certification”). If the Class offers a Certification, Provider will provide the rules and guidelines applicable to the Certification during the Class. All Certifications must be completed within ninety (90) days following the last day of the applicable Class unless an exception or extension is granted by Provider. No refunds will be provided for failure to achieve a Certification pursuant to those rules and guidelines or failure to attend scheduled Certification exam. To reschedule a Certification exam, Provider must have written notice at least forty eight (48) hours prior to the start of the exam. A Certification exam may only be rescheduled one time for each Class attendee.
(f) Warranty. Provider warrants that each Class shall be presented in a technically correct manner and with professional diligence and skill. The foregoing warranty is valid during the Class and for ten (10) days following the completion of the Class (the “Classroom Training Warranty Period”). All breaches of the foregoing warranty must be reported to Provider in writing during the Classroom Training Warranty Period. Customer’s exclusive remedy and Provider’s sole obligation for any and all covered breaches of the foregoing warranty shall be for Provider, at its option, to allow Customer to apply the amount paid for the nonconforming Class to another Class offered within nine (9) months of the non-conforming Class or refund the fees paid for such Class. For the purposes of this Section a “technically correct manner” means that the technical information provided during the Class was substantially accurate and consistent with the applicable Documentation.
(a) The Courses. Each WBT course (each, a “Course”) must be started within twelve (12) months of the date it is purchased and completed within fourteen (14) days after it has been started. If the Course is not started within twelve (12) months of the date it is purchased or is not completed within fourteen (14) days after it has been started, the right to take or complete the Course will expire without right of refund. The Course may only be taken by one person within Customer’s organization.
(b) Course Materials. The Materials provided during the Course are Provider’s Confidential Information (as defined in Section 6(h)) and may not be copied, downloaded, “screen scraped”, or otherwise duplicated without the express written consent of Provider.
(c) Warranty. Provider warrants that each Course shall be presented in a technically correct manner and with professional diligence and skill. The foregoing warranty is valid during the Course and for ten (10) days following the completion of the Course (the “WBT Warranty Period”). All breaches of the foregoing warranty must be reported to Provider in writing during the WBT Warranty Period. Customer’s exclusive remedy and Provider’s sole obligation for any and all covered breaches of the foregoing warranty shall be for Provider, at its option, to allow Customer to apply the amount paid for the nonconforming Course to another Course offered within nine (9) months of the non-conforming Course or refund the fees paid for such Course. For the purposes of this Section a “technically correct manner” means that the technical information provided during the Course was substantially accurate and consistent with the applicable Documentation.
(a) Definitions. Capitalized terms not defined in context shall have the meanings throughout the Agreement assigned to them below:
(i) “Activities” are consulting and/or training services to be performed by Provider on a “time and materials” basis (i.e., billed by the hour or Day).
(ii) A “Day” is eight (8) hours.
(iii) An “Engagement” is a set of consecutive Workdays during which Provider shall perform Activities or Project Deliverables at Customer’s site.
(iv) A “Fixed Price Services Offering” is a Services Offering in which Provider agrees to create or perform an expressly identified list of Deliverables for a set price, regardless of how long it may take Provider to complete them.
(v) “Prepaid Time” is Time for which Customer is invoiced immediately following the full execution of the Order.
(vi) A “Project Deliverable” is a discrete task to be performed or item to be created which is expressly identified as a Project Deliverable in the SO and which is to be provided without regard to the Time required to perform or create it. For the avoidance of doubt, no task to be performed, or item to be created, which is not expressly identified as a Project Deliverable in the SO, shall be considered a Project Deliverable.
(vii) A “Services Offering” or “SO” is the document describing the planned Activities or the Deliverables to be provided under this Order.
(viii) “Time” is the quantity of Days or hours purchased in each SO that is not a Fixed Price SO.
(ix) A “Time and Materials SO” or “T&M SO” is a Services Offering in which Provider agrees to provide the Time stated in the SO during which it will perform some or all the Activities stated in the SO. No Project Deliverables are provided under a T&M SO.
(x) A “Workday” is a calendar day during which Provider performs Activities.
(b) Resource Assignment. The Activities or Project Deliverables shall start upon mutual agreement of the parties. Customer agrees that Provider may use certified channel partners or certified subcontractor consultants to perform Activities or Project Deliverables; however, Provider shall be liable to Customer for the acts and omissions of any such channel partner or subcontractor while such channel partner or subcontractor is performing Activities or Project Deliverables under the Order. With Customer’s approval, Provider may also send a consultant-in-training, free of charge, for observation or training purposes.
(c) Rescheduling. If Customer cancels or reschedules an Engagement less than ten (10) days before it is scheduled to begin, it shall pay Provider a cancellation fee equal to three (3) Days of Activities or forfeit three (3) Days of Prepaid Time of Activities (as applicable) and reimburse Provider for any non-refundable travel expenses Provider incurs as a result of the cancellation or rescheduling. For an SO with Project Deliverables, the cancellation fee shall be equal to three (3) Days at Provider’s then standard rate per Day.
Customer agrees that, except for factors beyond its reasonable control or if the Activities or Project Deliverables (if any) planned for an Engagement have been completed, it shall not cancel an Engagement. If Customer cancels the Engagement once it has begun, for reasons other than those stated in the preceding sentence, it shall pay Provider for the remaining Time in the Engagement or, if applicable, forfeit the applicable Prepaid Time.
(d) Assumptions and Customer Obligations. Customer agrees to sign weekly Time and Activity reports to confirm the performance of the Activities and, if training classes are being provided under the Order or SO, sign the class evaluation forms prior to the departure of the on-site trainer. If the weekly Time and Activity reports are not signed by Customer within five (5) days of their delivery or Customer has not submitted a written request for adjustment, they shall be considered to be correct and accepted by Customer. In addition, Customer shall:
(e) Time. Provider does not represent that the planned Activities shall be completed within the Time stated on the Order or the SO. Provider shall promptly notify Customer if it determines that more Time shall be required to complete the planned Activities and shall not perform Activities beyond the Time without an executed amendment to the Order. Following Customer’s email or equivalent approval, Provider may reallocate the Time stated in the SO among the various resources stated in the fees table of the SO, provided such reallocation does not exceed the Estimated Total Fees set forth therein. Activities shall use Prepaid Time, if any, before non-Prepaid Time. For added certainty, this Section 5(e) does not apply to Project Deliverables, if any, included in an SO.
(f) Completion of Project Deliverables. This Section 5(f) applies only to Fixed Price SO’s. Following the completion and delivery of the Project Deliverable(s), Provider shall notify Customer in writing that the Project Deliverable(s) have been performed and delivered. During the ten (10) day period following the delivery of the Project Deliverable(s) to Customer (the “Completion Acknowledgement Period”), Customer may notify Provider that the Project Deliverable(s) have not been completed. If Customer does not so notify Provider, the Project Deliverables(s) shall be deemed completed on the day following the end of the Completion Acknowledgement Period. Nothing in this Section 5(f) shall affect Customer’s rights under Section 5(k) (Professional Services Warranty).
(g) Expenses. Unless the SO indicates that Travel Expenses are included in the rate or otherwise not chargeable, Customer agrees to reimburse Provider for the travel and living expenses reasonably incurred in the performance of the SO (“Travel Expenses”). Travel Expenses are estimated in the fees table and, unless stated otherwise in the SO, shall be subject to the following guidelines:
No Travel Expenses shall be charged for Time designated as “Remote” in the SO.
(h) Dates Valid. The Unit Price in the SO is valid for Activities performed within one (1) year of the date of Customer’s execution of the SO. Any Prepaid Days unused after twelve (12) months from the date of the full execution of the SO shall expire without the right of refund.
(i) Normal Business Hours, Weekends, and Holidays. Unless otherwise agreed by the parties, Activities shall be performed Monday through Friday 7:00 a.m. to 8:00 p.m. local time (“Normal Business Hours”), excluding weekends and holidays. Generally, a Workday is eight (8) hours and equivalent to a Day; however, upon mutual agreement by the parties, Provider may work more than eight (8) hours in a Workday and may work four (4) ten-hour Workdays in a calendar week. For billing purposes, a Workday on which Provider works ten (10) hours is equal to one and one quarter (1.25) Days; a week in which Provider works four (4) ten-hour Workdays is equal to five (5) Days.
Provider shall only perform Activities after Normal Business Hours or on weekend and holiday Workdays if authorized to do so by Customer in writing. Weekend and holiday Workdays must be scheduled at least fifteen (15) days in advance and be for a minimum of one (1) Day. If Activities are performed after Normal Business Hours or on a weekend or Provider holiday Workday, one and one half (1.5) hours shall be charged for each hour Provider performs Activities outside of Normal Business Hours, one and one half (1.5) Days shall be charged for each weekend Workday on which Activities are performed and two (2) Days shall be charged for each holiday Workday on which Activities are performed. If Activities using Prepaid Time are performed after Normal Business Hours or on a weekend or Provider holiday Workday, one and one half (1.5) hours shall be used from the estimated Time for each hour Provider performs Activities outside of Normal Business Hours, the estimated Time shall be used at the rate of one and one half (1.5) Days for each weekend Workday on which Activities are performed and two (2) Days for each holiday Workday on which Activities are performed.
(j) Intellectual Property. During the performance of the Activities or creation of Project Deliverables by Provider, Provider may create certain intellectual property, including, without limitation, ideas, know-how, techniques, documentation, and software scripts (collectively, the “IP”). All IP shall be the sole and exclusive property of Provider. Provider retains title and full ownership rights to all such IP under the copyright laws of the United States, Canada or any other jurisdiction or under any federal, state, or foreign laws. Upon Provider’s receipt of payment for the Activities or Project Deliverables, Customer shall be granted a perpetual, irrevocable, royalty-free, non-exclusive, non-transferable, non-sublicensable license to use the IP for its internal business purposes. Notwithstanding the foregoing, nothing contained in this clause shall grant Provider any ownership rights to Customer’s Confidential Information.
(k) Professional Services Warranty. Provider warrants that the Activities and Project Deliverables (if any) shall be performed in a workmanlike, technically correct manner and with professional diligence and skill and the Project Deliverables (if any) shall substantially conform to their descriptions in the SO (the “Professional Services Warranty”). The Professional Services Warranty for each Activity and each Project Deliverable shall be valid for thirty (30) days following the performance of the Activity or delivery of the Project Deliverable (the “Professional Services Warranty Period”). Each breach of the Professional Services Warranty must be reported to Provider in writing during the applicable Professional Services Warranty Period. As Customer’s exclusive remedy and Provider’s sole obligation for any and all breaches of the Professional Services Warranty, Provider shall, at its option and expense, either re-perform any nonconforming Activities or re-perform or recreate any nonconforming Project Deliverables or refund the fees paid for such nonconforming Activities or Project Deliverables. For the purposes of this Section, a “technically correct manner” means that the Activities or Project Deliverables have been performed accurately and in a manner which is consistent with the applicable Documentation.
(l) Hiring of Employees. During the term of the SO, and for a period of six (6) months thereafter, Customer shall not solicit for employment any employees of Provider or its Affiliates who directly participated in the work being performed under the SO. For this purpose, “solicitation” does not include contact resulting from indirect means, such as public advertisement, placement firm searches or similar means not directed specifically at the employee to which the employee responds on his or her own initiative, nor shall it include contacts initiated by the employee.
(a) Independent Purchases. Customer acknowledges and agrees that any and all Professional Services or Training Services purchased by Customer are independent of Customer's purchase and use of the related Software Licenses. Customer further agrees that payment for Software Licenses purchased hereunder is in no way dependent or in any way associated with the commencement, completion, or delivery of Professional Services or Training Services.
(b) Payment and Taxes. Payment shall be made pursuant to the checkout process by which the Products or Services were purchased. If the checkout process indicates other than payment by credit card at the time of checkout, Customer will be invoiced promptly following checkout and Customer shall make all payments due to Provider in full within thirty (30) days from the date of each invoice. Provider reserves the right to charge Customer a late penalty of 1.5% per month (or the maximum rate permitted by law, whichever is the lesser) for any amounts payable to Provider by Customer that are not subject to a good faith dispute and that remain unpaid after the due date until such amount is paid. The fees stated in an Order may not include taxes. If Provider is required to pay sales, use, property, value-added or other taxes based on the Products or Services provided under this Agreement or on Customer’s use of Products or Services, then such taxes shall be billed to and paid by Customer. This Section does not apply to taxes based on Provider’s income
(c) No Refunds. Except as provided for in Sections 1(g), 3(a), 3(f), 4(c), 5(k) and 6(d), no refunds or right of return of any kind are offered or provided for the Products or Services purchased hereunder.
(d) Infringement. Provider shall indemnify Customer from and against any claim, suit, action, or proceeding brought against Customer by a third party to the extent it is based on an allegation that the Software directly infringes any patent, copyright, trademark, or other proprietary right enforceable in the country in which Provider has authorized Customer to use the Software, including, but not limited to the country to which the Software is delivered to Customer, or misappropriates a trade secret in such country (a “Claim”). Indemnification for a Claim shall consist of the following: Provider shall (a) defend or settle the Claim at its own expense, (b) pay any judgments finally awarded against Customer under a Claim or any amounts assessed against Customer in any settlements of a Claim, and (c) reimburse Customer for the reasonable administrative costs or expenses, including without limitation reasonable attorneys’ fees, it necessarily incurs in responding to the Claim. Provider’s obligations under this Infringement Indemnity Section are conditioned upon Customer (i) giving prompt written notice of the Claim to Provider, (ii) permitting Provider to retain sole control of the investigation, defense or settlement of the Claim, and (iii) providing Provider with cooperation and assistance as Provider may reasonably request in connection with the Claim. Provider shall have no obligation hereunder to defend Customer against any Claim (a) resulting from use of the Software other than as authorized by this Agreement, a Signed Order, or a Governing Quotation, (b) resulting from a modification of the Software other than by Provider, (c) based on Customer’s use of any release of the Software after Provider recommends discontinuation because of possible or actual infringement and has provided a non-infringing version at no charge, or (d) to the extent the Claim arises from or is based on the use of the Software with other products, services, or data not supplied by Provider if the infringement would not have occurred but for such use. If, as a result of a Claim or an injunction, Customer must stop using any Software (“Infringing Software”), Provider shall at its expense and option either (1) obtain for Customer the right to continue using the Infringing Software, (2) replace the Infringing Software with a functionally equivalent non-infringing product, (3) modify the Infringing Software so that it is non-infringing, or (4) terminate the License for the Infringing Software and accept the return of the Infringing Software and refund the license fee paid for the Infringing Software, pro-rated over a sixty (60) month period from the date of initial delivery of such Software following an Order. This Section states Provider’s entire liability and its sole and exclusive indemnification obligations with respect to a Claim and Infringing Software.
(e) Term and Termination.
(i) Term. The term of this Agreement will begin on the date of the applicable purchase (the “Agreement Date”) and will continue until terminated as permitted by this Term and Termination Section (the “Term”).
(ii) Termination. This Agreement, an SO, or the Licenses granted hereunder may be terminated (i) by mutual agreement of Provider and Customer, or (ii) by either party if the other party or a Third Party User commits a material breach of this Agreement or an Order and, if such breach is reasonably capable of being cured, fails to cure the breach to the other party’s reasonable satisfaction within thirty (30) days following its receipt of notice of the breach.
(iii) Effect of Expiration or Termination. Upon termination of this Agreement or expiration or termination of a License for any reason, all rights granted to Customer for the applicable License(s) shall immediately cease and Customer shall immediately: (A) cease using the applicable Provider Intellectual Property and Documentation, (B) remove all copies, installations, and instances of the applicable Provider Intellectual Property from all Customer computers, and ensure that all applicable Third Party Users do the same, (C) return the applicable Provider Intellectual Property to Provider together with all Documentation and other materials associated with the Provider Intellectual Property and all copies of any of the foregoing, or destroy such items, (D) cease using the Maintenance Services associated with the applicable Software, (E) pay Provider all amounts due and payable up to the date of termination, and (F) give Provider a written certification, within ten (10) days, that Customer and its Third Party Users, as applicable, have complied with all of the foregoing obligations. Termination of this Agreement or a License shall be without prejudice to any other remedies that the terminating party may have under law, subject to the limitations and exclusions set forth in this Agreement. If any SO is terminated, Customer shall (1) pay Provider for all fees and expenses incurred up to the effective date of termination and (2) shall not be entitled to a refund of any unused prepaid fees purchased by such SO unless the termination is for Provider’s uncured breach.
(iv) Survival. Any provision of this Agreement that requires or contemplates execution after termination of this Agreement or expiration or termination of a License is enforceable against the other party and their respective successors and assignees notwithstanding termination or expiration, including, without limitation, the “Restrictions,” “Compliance Verification,” “Payment and Taxes,” “Infringement,” “Effect of Expiration or Termination,” “Survival,” “Limitation of Liability,” “Confidential Information,” “Warranty Disclaimer,” and “General” Sections of this Agreement.
(f) Export. Customer acknowledges that the Products and Maintenance Services are subject to the export control laws, rules, regulations, restrictions and national security controls of the United States and other applicable foreign agencies (the "Export Controls") and agrees to abide by the Export Controls. Customer hereby agrees to use the Products and Maintenance Services in accordance with the Export Controls, and shall not export, re-export, sell, lease or otherwise transfer the Products or any copy, portion or direct product of the foregoing in violation of the Export Controls. Customer is solely responsible for obtaining all necessary licenses or authorizations relating to the export, re-export, sale, lease or transfer of the Products and for ensuring compliance with the requirements of such licenses or authorizations. Customer hereby (i) represents that Customer is not an entity or person to which shipment of Products, or provision of Maintenance Services, is prohibited by the Export Controls; and (ii) agrees that it shall not export, re-export or otherwise transfer the Products to (a) any country subject to a United States trade embargo, (b) a national or resident of any country subject to a United States trade embargo, (c) any person or entity to which shipment of Products is prohibited by the Export Controls, or (d) anyone who is engaged in activities related to the design, development, production, or use of nuclear materials, nuclear facilities, nuclear weapons, missiles or chemical or biological weapons. Customer shall, at its expense, defend Provider and its Affiliates from any third party claim or action arising out of any inaccurate representation made by Customer regarding the existence of an export license, Customer’s failure to provide information to Provider to obtain an export license or any allegation made against Provider due to Customer’s violation or alleged violation of the Export Controls (an “Export Claim”) and shall pay any judgments or settlements reached in connection with the Export Claim as well as Provider’s costs of responding to the Export Claim.
(g) Limitation of Liability.
EXCEPT FOR (A) ANY BREACH OF THE RESTRICTIONS OR Confidential informatIon SECTIONS OF THIS AGREEMENT, (B) AMOUNTS CONTAINED IN JUDGMENTS OR SETTLEMENTS WHICH PROVIDER OR CUSTOMER IS LIABLE TO PAY TO A THIRD PARTY UNDER THE INFRINGEMENT INDEMNITY SECTION OF THIS AGREEMENT and CUSTOMER IS LIABLE TO PAY ON BEHALF OF OR TO PROVIDER under the CONDUCT, export, MSP LICENSE, AND USE BY THIRD PARTIES SECTIONs OF THIS AGREEMENT, OR (C) any liability to the extent LIABILITY may not be excluded or limited as a matter of APPLICABLE law, IN NO EVENT SHALL customer or its affiliaTes or PROVIDER, ITS AFFILIATES OR SUPPLIERS BE LIABLE FOR (X) any indirect, incidental, special or consequeNTIAL loss or damage of any kind or (Y) loss of revenue, loss of actual or anticipated profits, loss of business, loss of contracts, loss of goodwill or reputation, loss of anticipated savings, loss of, damage to or corruption of data, howsoever arising, whether such loss or damage was foreseeable or in the contemplation of the parties and whether arising in or for breach of contract, tort (including negligence), breach of statutory duty, or otherwise.
EXCEPT FOR (a) ANY BREACH OF THE software LICENSE, RESTRICTIONS, OR Confidential Information SECTIONS OF THIS AGREEMENT, OR ANY OTHER VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; (B) PROVIDER’s express obligations under THE INFRINGEMENT INDEMNITY SECTION OF THIS AGREEMENT AND CUSTOMER’S EXPRESS OBLIGATIONS UNDER THE conduct, export, MSP LICENSE, AND USE BY THIRD PARTIES SECTIONs OF THIS AGREEMENT, (c) PROVIDER’S COSTS OF COLLECTING DELINQUENT AMOUNTS WHICH ARE NOT THE SUBJECT OF A GOOD FAITH DISPUTE; (D) A PREVAILING PARTY’S LEGAL FEES PURSUANT TO THE LEGAL FEES SECTION OF THIS AGREEMENT; OR (E) any liability to the extent LIABILITY may not be excluded or limited as a matter of applicable law, The maximum aggregate and cumulative liability of CUSTOMER and its affiliates and PROVIDER, its affiliates and suppliers, for damages under this agreement, whether arising in or for breach of contract, tort (including negligence), breach of statutory duty, or otherwise, shall be an amount equal to (Y) THE GREATER OF THE FEES PAID and/OR OWED (as applicable) BY CUSTOMER or its affiliates FOR THE pRODUCTS THAT ARE THE SUBJECT OF THE breach OR FIVE HUNDRED DOLLARS ($500.00),except for (Z) MAINTENANCE SERVICES OR A PRODUCT SUBJECT TO RECURRING FEES, for which the maximum aggregate and cumulative liability shall be THE GREATER OF THE AMOUNT paid and/OR OWED (as applicable) FOR SUCH MAINTENANCE SERVICE OR PRODUCT during the TWELVE (12) MONTHS PRECEDING THE breach OR FIVE HUNDRED DOLLARS ($500.00). THE PARTIES AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR PROVIDER PROVIDING PRODUCTS AND SERVICES TO CUSTOMER, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES OR FAILURES.
Provider’s Affiliates and suppliers and Customer’s Affiliates shall be beneficiaries of this Limitation of Liability Section and Customer’s Clients and Third Party Users are entitled to the rights granted under the MSP License and Use by Third Parties Sections of this Agreement; otherwise, no third party beneficiaries exist under this Agreement. Provider expressly excludes any and all liability to Third Party Users, Clients and to any other third party.
(h) Confidential Information
(i) Definition. “Confidential Information” means information or materials disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) that are not generally available to the public and which, due to their character and nature, a reasonable person under like circumstances would treat as confidential, including, without limitation, financial, marketing, and pricing information, trade secrets, know-how, proprietary tools, knowledge and methodologies, the Software (in source code and/or object code form), information or benchmark test results regarding the functionality and performance of the Software, any Software license keys provided to Customer, and the terms and conditions of this Agreement.
Confidential Information shall not include information or materials that (i) are generally known to the public, other than as a result of an unpermitted disclosure by the Receiving Party after the date that Customer accepts the Agreement (the “Effective Date”); (ii) were known to the Receiving Party without an obligation of confidentiality prior to receipt from the Disclosing Party; (iii) the Receiving Party lawfully received from a third party without that third party’s breach of agreement or obligation of trust; (iv) are protected by Provider in accordance with its obligations under the Protected Data Section below, or (v) are or were independently developed by the Receiving Party without access to or use of the Disclosing Party’s Confidential Information.
(ii) Obligations. The Receiving Party shall (i) not disclose the Disclosing Party’s Confidential Information to any third party, except as permitted in subsection (c) below and (ii) protect the Disclosing Party’s Confidential Information from unauthorized use or disclosure by exercising at least the same degree of care it uses to protect its own similar information, but in no event less than a reasonable degree of care. The Receiving Party shall promptly notify the Disclosing Party of any known unauthorized use or disclosure of the Disclosing Party’s Confidential Information and will cooperate with the Disclosing Party in any litigation brought by the Disclosing Party against third parties to protect its proprietary rights. For the avoidance of doubt, this Section shall apply to all disclosures of the parties’ Confidential Information as of the Effective Date, whether or not specifically arising from a party’s performance under this Agreement.
(iii) Permitted Disclosures. Notwithstanding the foregoing, the Receiving Party may disclose the Disclosing Party’s Confidential Information without the Disclosing Party’s prior written consent to any of its Affiliates, directors, officers, employees, consultants, contractors or representatives (collectively, the “Representatives”), but only to those Representatives that (i) have a “need to know” in order to carry out the purposes of this Agreement or to provide professional advice in connection with this Agreement, (ii) are legally bound to the Receiving Party to protect information such as the Confidential Information under terms at least as restrictive as those provided herein, and (iii) have been informed by the Receiving Party of the confidential nature of the Confidential Information and the requirements regarding restrictions on disclosure and use as set forth in this Section. The Receiving Party shall be liable to the Disclosing Party for the acts or omissions of any Representatives to which it discloses Confidential Information which, if done by the Receiving Party, would be a breach of this Agreement.
Additionally, it shall not be a breach of this Section for the Receiving Party to disclose the Disclosing Party’s Confidential Information as may be required by operation of law or legal process, provided that the Receiving Party provides prior notice of such disclosure to the Disclosing Party unless expressly prohibited from doing so by a court, arbitration panel or other legal authority of competent jurisdiction.
(i) Protected Data. For purposes of this Section, “Protected Data” means any information or data that is provided by Customer to Provider during this Agreement that alone or together with any other information relates to an identified or identifiable natural person or data considered to be personal data as defined under Privacy Laws, and “Privacy Laws” means any applicable law, statute, directive or regulation regarding privacy, data protection, information security obligations and/or the processing of Protected Data.
Except as permitted herein or to the extent required by Privacy Laws or legal process, Provider shall implement reasonable technical and organizational measures to prevent unauthorized disclosure of or access to Protected Data by third parties, and shall only store and process Protected Data as may be required to fulfill its obligations under this Agreement and any applicable Orders. If Provider complies with Customer’s written instructions with respect to the Protected Data, Provider shall have no liability to Customer for any breach of this Section resulting from such compliance. Provider shall promptly notify Customer of any disclosure of or access to the Protected Data by a third party in breach of this Section and shall cooperate with Customer to reasonably remediate the effects of such disclosure or access. Provider further affirms to Customer that it has adequate agreements in place incorporating the EU standard contractual clauses for the transfer of Protected Data from the European Union (“EU”) to a country outside the EU.
Customer hereby (i) represents that it has the right to send the Protected Data to Provider, (ii) consents for Provider to store and use the Protected Data worldwide for the sole purpose of performing its obligations under this Agreement and any applicable Orders, (iii) agrees that the Protected Data may be accessed and used by Provider and its Representatives worldwide as may be needed to support Provider’s standard business operations, and (iv) agrees that Protected Data consisting of Customer contact information (e.g., email addresses, names) provided as part of Maintenance Services may be sent to Provider’s third party service providers as part of Provider’s services improvement processes.
(j) Warranty Disclaimer. THE EXPRESS WARRANTIES AND REMEDIES SET FORTH IN SECTIONS 1(g), 3(f), 4(c), and 5(k) ARE THE ONLY WARRANTIES AND REMEDIES PROVIDED BY PROVIDER HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL OTHER WARRANTIES OR REMEDIES ARE EXCLUDED, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT, SATISFACTORY QUALITY, AND ANY WARRANTIES ARISING FROM USAGE OF TRADE OR COURSE OF DEALING OR PERFORMANCE. PROVIDER DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION OF THE PRODUCTS.
(k) Third Party Products. Certain Products may contain features designed to interoperate with third-party products. If the third-party product is no longer made available by the applicable provider, Provider may stop providing the related product feature, and Customer will not be entitled to any refund, credit or other compensation. In such event, Provider will provide reasonable notice to Customer.
(l) High-Risk Disclaimer. High-Risk Disclaimer. customer understands and agrees that The Products are not fault-tolerant and are not designed or intended for use in any high-risk or hazardous environment, including without limitation, the operation of nuclear facilities, aircraft navigation, air traffic control, life support machines, weapons systems, or any other application where the failure or malfunction of any Product can reasonably be expected to result in death, personal injury, severe property damage or severe environmental harm (A “High Risk Environment”). accordingly, (i) customer should not use the products in a High Risk Environment, (ii) any use of the products by customer in a high risk environment is at customer’s own risk, (iii) Provider, its affiliates and suppliers shall not be liable to Customer in any way for use of the Products in a High risk Environment, and (iv) Provider makes no warranties or assurances, express or implied, regarding use of the Products in a High Risk Environment.
(m) General Terms
(i) Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any conflict of laws principles that would require the application of laws of a different state. Any action seeking enforcement of this Agreement or any provision hereof shall be brought exclusively in the state or federal courts located in Orange County, California. Each party hereby agrees to submit to the jurisdiction of such courts.
The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act (UCITA) shall apply to this Agreement, regardless of the states in which the parties do business or are incorporated.
(ii) Assignment. Except as otherwise set forth herein, Customer shall not, in whole or part, assign or transfer any part of this Agreement, the Licenses granted under this Agreement or any other rights, interest or obligations hereunder, whether voluntarily, by contract, by operation of law or by merger (whether that party is the surviving or disappearing entity), stock or asset sale, consolidation, dissolution, through government action or order, or otherwise without the prior written consent of Provider. Any attempted transfer or assignment by Customer that is not permitted by this Agreement shall be null and void.
(iii) Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law, such provision will be enforced to the maximum extent permissible by law to effect the intent of the parties and the remaining provisions of this Agreement will remain in full force and effect. Notwithstanding the foregoing, the terms of this Agreement that limit, disclaim, or exclude warranties, remedies or damages are intended by the parties to be independent and remain in effect despite the failure or unenforceability of an agreed remedy. The parties have relied on the limitations and exclusions set forth in this Agreement in determining whether to enter into it.
(iv) Use by U.S. Government. The Software is a “commercial item” under FAR 12.201. Consistent with FAR section 12.212 and DFARS section 227.7202, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Software or Documentation by the U.S. government is prohibited except as expressly permitted by the terms of this Agreement. In addition, when Customer is a U.S. government entity, the language in Subsection (ii) of the Infringement Indemnity Section of this Agreement and the Injunctive Relief Section of this Agreement shall not be applicable.
(v) Notices. All notices provided hereunder shall be in writing and addressed to the legal department of the respective party or to such other address as may be specified in an Order or in writing by either of the parties to the other in accordance with this Section. Except as may be expressly permitted herein, notices may be delivered personally, sent via a nationally recognized courier or overnight delivery service, or mailed by first class mail, postage prepaid. All notices, requests, demands or communications shall be deemed effective upon personal delivery or, if sent by mail, four (4) days following deposit in the mail in accordance with this paragraph.
(vi) Disclosure of Customer Status. Provider may include Customer in its listing of customers and, upon written consent by Customer, announce Customer's selection of Provider in its marketing communications.
(vii) Waiver. Performance of any obligation required by a party hereunder may be waived only by a written waiver signed by an authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described therein. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
(viii) Injunctive Relief. Each party acknowledges and agrees that in the event of a material breach of this Agreement, including but not limited to a breach of the Software License, Restrictions or Confidential Information Sections of this Agreement, the non-breaching party shall be entitled to seek immediate injunctive relief, without limiting its other rights and remedies.
(ix) Force Majeure. Each party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of war, epidemics, communication line failures, and power failures. For added certainty, this Section shall not operate to change, delete, or modify any of the parties’ obligations under this Agreement (e.g., payment), but rather only to excuse a delay in the performance of such obligations.
(x) Equal Opportunity. Provider Software Inc. is a federal contractor and Affirmative Action employer (M/F/D/V) as required by the Equal Opportunity clause C.F.R. § 60-741.5(a).
(xi) Headings. Headings in this Agreement are for convenience only and do not affect the meaning or interpretation of this Agreement. This Agreement will not be construed either in favor of or against one party or the other, but rather in accordance with its fair meaning. When the term “including” is used in this Agreement it will be construed in each case to mean “including, but not limited to.”
(xii) Legal Fees. If any legal action is brought to enforce any rights or obligations under this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees, court costs and other collection expenses, in addition to any other relief it may be awarded.
(xiii) Entire Agreement. This Agreement is intended by the parties as a final expression of their agreement with respect to the subject matter thereof and may not be contradicted by evidence of any prior or contemporaneous agreement unless such agreement is signed by both parties. In the absence of such an agreement, this Agreement and the applicable Order shall constitute the complete and exclusive statement of the terms and conditions and no extrinsic evidence whatsoever may be introduced in any judicial or arbitral proceeding that may involve the Agreement. Each party acknowledges that in entering into the Agreement it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in the Agreement. In those jurisdictions where an original (non-faxed, non-electronic, or non-scanned) copy of an agreement or an original (non-electronic) signature on agreements such as this Agreement or an Order is required by law or regulation, the parties hereby agree that, notwithstanding any such law or regulation, a faxed, electronic, or scanned copy of and a certified electronic signature on this Agreement or any Order shall be sufficient to create an enforceable and valid agreement. In the event of a conflict between the terms of this Agreement and the terms contained in an Order, the terms of a Signed Order shall control; for all other Orders, the terms of this Agreement shall control. Neither this Agreement, nor an Order, may be modified or amended except by a writing executed by a duly authorized representative of each party. No other act, document, usage or custom shall be deemed to amend or modify this Agreement or an Order.