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Software License Subscription Agreement

Read this document carefully before downloading, copying, installing or using. You may not access or use the software to which this Software License Subscription Agreement (this “Agreement”) applies unless you agree to all of the terms and conditions of this Agreement.

This Agreement is a legal agreement between the entity by whom you are employed or whom you represent (“Customer”) and HarperDB, Inc. (“HarperDB”) regarding the use of the HarperDB software identified in a “Sales Order” (defined below) to this Agreement and HarperDB’s provision of related services for such software.

- BY INDICATING YOUR ASSENT TO THIS AGREEMENT (FOR EXAMPLE, BY SIGNING A SALES ORDER THAT REFERENCES THIS AGREEMENT, OR BY INDICATING YOUR AGREEMENT BY CLICKING ON AN “ACCEPT”, “AGREE” OR SIMILAR BUTTON, OR CHECKING A BOX INDICATING YOUR AGREEMENT TO THESE TERMS, IN A WEB FORM OR AS PART OF YOUR DOWNLOAD OR INSTALLATION OF HARPERDB SOFTWARE, YOU ARE REPRESENTING AND AGREEING THAT: (1) YOU HAVE THE AUTHORITY TO BIND THE ENTITY BY WHOM YOU ARE EMPLOYED OR WHOM YOU REPRESENT TO THIS AGREEMENT; AND (2) THE ENTITY BY WHOM YOU ARE EMPLOYED OR   WHOM YOU REPRESENT WILL BE BOUND BY AND A PARTY TO THIS AGREEMENT. 

- IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, (1) YOU MAY NOT SIGN THE SALES ORDER, OR INDICATE YOUR ASSENT IN A WEB FORM OR AS PART OF THE DOWNLOAD OR INSTALLATION PROCESS, AND (2) YOU MAY NOT INSTALL, USE, COPY OR DISTRIBUTE THE HARPERDB SOFTWARE. IF YOU ALREADY HAVE POSESSION OF THE SOFTWARE AND HAVE CHOSEN NOT TO AGREE TO THE TERMS OF THIS AGREEMENT, PLEASE DESTROY OR DELETE ALL COPIES OF THE SOFTWARE IN YOUR POSSESSION.

 

Section 1. Definitions.

For the purposes of this Agreement, the following capitalized words and phrases have the following meanings:

Reseller” means an entity that HarperDB has authorized as a “distributor” or “reseller” of the Software.

Reseller Sale Agreement” means the order, agreement or other document between Customer and a Reseller for Customer’s purchase of a License and Support Program subscription. Terms that apply to Customer’s use of the Software and Support Program when purchased from a Reseller are specified in Section 10.

Confidential Information” has the meaning ascribed to it in Section 9.

Documentation” means the Software user manuals and other Software documentation, including updated or revised documentation that may be provided to Customer by HarperDB.

Free Trial” means non-commercial use of the Software for evaluation purposes pursuant to the free trial registration and on-line checkout form published at www.harperdb.io.

Intellectual Property Rights” means all trade secrets, patents and patent applications, trademarks (whether registered or unregistered and including any goodwill acquired in such trade marks), service marks, trade names, copyrights, moral rights, database rights, design rights, rights in know-how, rights in confidential information, rights in inventions (whether patentable or not) and all other intellectual property and proprietary rights (whether registered or unregistered, any application for the foregoing, and all rights to enforce the foregoing), and all other equivalent or similar rights which may exist anywhere in the world.

License” means a license to use the Software as specified in the applicable Sales Order and this Agreement.

License Term” means (i) with respect to a Free Trial, the period beginning on the Sales Order Effective Date, and ending on the later to occur of (a) the 30th day following the Sales Order Effective Date, and (b) the Free Trial expiration date specified in the Sales Order, and (ii) with respect to a fee-based License, the term of each License, as specified in the applicable Sales Order, subject to renewal in accordance with Section 8.1.

Sales Order” means a completed version of HarperDB’s standard form of sales order for the Software and related services, or other form of order acceptable to HarperDB, that has been submitted to HarperDB by Customer or a Reseller from whom Customer is purchasing Software license rights, and that HarperDB has accepted in writing. If Customer subscribes via HarperDB’s online checkout, then the checkout form submitted by Customer and accepted by HarperDB constitutes the applicable Sales Order for purposes of this Agreement. Each Sales Order will specify: (i) a description of the Software to be licensed, (ii) the Scope Limitations applicable to the License,

(iii) the term of the License and the term of Customer’s subscription to the Support Program, (iv) the fees to be paid for the License and related services, (iv) whether the License is for a Free Trial, and (vi) any additional terms and conditions as may be mutually agreed upon by HarperDB and the respective Customer or Reseller.

Sales Order Effective Date” means, with respect to each Sales Order, (i) the effective date specified in the Sale Order or, if none, the date on which the last of HarperDB and Customer executes the Sales Order, (ii) in the case of an online checkout form, the date on which HarperDB enters the completed online checkout form into its system, or (iii) if Customer purchases Services through a Reseller, upon HarperDB’s acceptance of the Sales Order following its submission by the Reseller.

Scope Limitations” means the license metrics and other scope limitations applicable to the License.

Software” means the executable code version of HarperDB’s computer software programs specified in the applicable Sales Order, including any modifications or future releases of such software that HarperDB may provide to Customer as part of the Support Program.

Support Program” means the technical support and maintenance services specified in HarperDB’s then current Support Program description.

User” means any individual who is an employee or contractor of Customer and who is authorized by Customer to use the Software pursuant to the applicable Sales Order and this Agreement.

 

Section 2. Rights To Use Software.

2.1 Copying, Installation and Operation. 
HarperDB hereby grants Customer the following non-exclusive, non-transferable licenses, without right to sub-license, for the License Term, and subject to the Scope Limitations and the provisions of this Agreement, to: (a) reproduce the Software to the extent permitted within the Scope Limitations; (b) to distribute such copies to and install them on computers owned by Customer or under its control; (c) to run the Software on the computers described in Section 2.1(b) above; and (d) to reproduce copies of the Documentation to the extent reasonably necessary for Users to use the Software, and to distribute and display such copies internally within Customer to Users. If Customer has acquired the Software under a Free Trial arrangement, then the License is conditioned upon Customer’s use of the Software solely for its internal, non-production purposes, and solely to evaluate whether Customer wishes to acquire a fee-based license to the Software.

2.2 Open Source Components. The Software may include software components provided by third parties that are subject to open-source copyright license agreements (“Open Source Components”). These Open Source components, if any, are identified in the Documentation. Customer’s use of the Open Source Components will be governed by and subject to the applicable open source license and not this Agreement.

2.3 Reservations. All rights to the Software, Documentation and all related and other Intellectual Property Rights of HarperDB not expressly granted to Customer are reserved to HarperDB. Customer may not make the Software or Documentation available to any third parties as part of any rental, leasing, time-sharing, ASP, SaaS, or service bureau arrangement. Except to the extent otherwise specified in the Sales Order, Customer may use the Software and Documentation only for its internal business purposes. Customer may in addition reproduce the Software, but solely to the extent necessary for bona fide non-production testing, back-up or archival purposes. All Software provided under this Agreement is licensed, not sold.

2.4 Proprietary Rights; Reverse Engineering. As between HarperDB and Customer, HarperDB will own all Intellectual Property Rights in or to the Software and Documentation, and any derivative works of or improvements or enhancements to any of the foregoing created or developed by or on behalf of HarperDB, or created or developed by or on behalf of Customer in violation of any of HarperDB’s Intellectual Property Rights. Customer acknowledges that the Software (including its structure, organization and code) and the Documentation constitute trade secrets and are the valuable property of HarperDB. Customer will not remove, obscure or alter any notice of copyright, patent, trade secret, trademark or other proprietary right or disclaimer appearing in or on any Software or Documentation. Except to the extent (if any) permitted by applicable law or required by HarperDB’s licensors, Customer will not decompile, or create or attempt to create, by reverse engineering or otherwise, the source code from the executable code supplied under this Agreement or use it to create a derivative work.

 

Section 3. Delivery of Software.
3.1 Software Delivery. If the Software is licensed for on premise use, HarperDB will make the Software and Documentation available for download, as specified in the applicable Sales Order, or as otherwise agreed to by the Parties and confirmed in writing. For purposes of this Agreement, the delivery date for the Software will be the first to occur of the date on which HarperDB notifies Customer that the Software is available for download, or the date on which Customer downloads the Software. If the Software is licensed for use in an environment operated by or on behalf of HarperDB, then HarperDB will make the Software available to Customer within such environment.

3.2 Related Services. HarperDB will provide Customer with the Support Program throughout the License Term, as specified in the applicable Sales Order.

 

Section 4. Fees.
4.1 Payment of Fees. Customer will pay HarperDB the fees for the License to the Software and the subscription to the Support Program (collectively, “Subscription Fees”), by check, EFT, or as specified or required in the applicable Sales Order. If Customer subscribes via HarperDB’s online checkout, then Customer will pay the Subscription Fees by credit card. Unless specified otherwise in the applicable Sales Order, Customer will make all payments in US dollars within thirty (30) days of receipt of HarperDB’s invoice. HarperDB may impose a finance charge of 1.0% per month on amounts unpaid by Customer on their due date. No fees are due from Customer for authorized use of the Software under a Free Trial License.

 

4.2 Taxes. Customer will be responsible for any applicable sales, use, or any value added or similar taxes (“Taxes”) payable with respect to the licensing of the Software to Customer, provision of the Support Program, or otherwise arising out of or in connection with this Agreement, other than taxes based upon HarperDB’s personal property ownership or net income. Unless expressly specified otherwise in any Sales Order, all Subscription Fees, rates and estimates exclude Taxes. If Customer has tax-exempt status, Customer will provide written evidence of such status.

 

4.3 Verification. Upon request by HarperDB, Customer will provide HarperDB with, or permit HarperDB to generate, a report generated by the Software indicating Customer’s compliance with the Scope Limitations for the period specified in the request. In the event of any use in excess of the License rights for which Customer has paid, Customer will promptly pay HarperDB Subscription Fees for such excess use at the rates specified in the applicable Sales Order. Upon receipt of such Subscription Fees, HarperDB will extend the License to cover the excess.

 

Section 5. Additional Rights and Obligations.
5.1 Unauthorized Use. Customer will promptly notify HarperDB of any unauthorized use of any Software of which Customer becomes aware. In the event of any unauthorized use by any User, Customer will use all commercially reasonable efforts to immediately terminate and prevent further occurrences of such unauthorized use.

 

Section 6. Warranties.
6.1 Warranties. HarperDB warrants to Customer that:

6.1.1 Performance. The Software, in the form provided by HarperDB to Customer under this Agreement, will perform in all material respects in accordance with its applicable specifications set forth in the Documentation, for a period of 30 days following delivery, or such other warranty period as may be specified in the applicable Sales Order (the “Warranty Period”). If the Software does not function as warranted during the Warranty Period and the problem cannot be resolved with the HarperDB Documentation, Customer may return the Software to the party (either HarperDB or its Reseller) from whom it was acquired and receive a refund in the amount paid by Customer. If the Software was downloaded, Customer may contact the party from whom it was acquired to receive instructions on how to obtain the refund.

6.1.2 Services. HarperDB will perform its obligations under the Support Program in a competent and professional manner, consistent with industry standards.

6.1.3 Scope. The warranties in this Agreement are for the sole benefit of Customer, and may not be extended to any other person or entity.

6.2 Disclaimer of Implied Warranties. HarperDB makes no representation or warranty in connection with the Software or the Support Program, except as set forth in Section 6.1. The warranties in Section 6.1.1 do not apply to a Free Trial. THESE WARRANTIES ARE CUSTOMER’S EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED IN DURATION TO THE WARRANTY PERIOD, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW.

 

Section 7. Term and Termination.
7.1 Term – Sales Orders. Each Sales Order will commence on the Sales Order Effective Date, and will continue for the period specified in the Sales Order or, if not so specified, one year (the “Initial License Term”), unless sooner terminated in accordance with Sections 7.2 or 7.3 below. Unless otherwise specified in the Sales Order, the Initial License Term will automatically renew for additional terms of the same length as the Initial License Term (each a “Renewal License Term”) unless either party declines renewal by notice in writing to that effect delivered to the other party at least thirty (30) days prior to expiration of the then current License Term. The Initial Term and each Renewal Term are individually referred to in this Agreement as the “License Term”. With respect to a Free Trial License, either party may terminate the License at any time, immediately upon notice to the other, for any reason or no reason.

7.2 Annual Fee Increases. Fees for Customer’s License and Support Program subscription are subject to annual increases, which will be effective beginning upon the first day of each Renewal Term. HarperDB will notify Customer of any increase prior to its becoming effective; notice may be in a form of an invoice. If Customer objects to the increase, then Customer may terminate its License; any such termination will be effective on expiration of the then current License Term. Customer acknowledges that expiration of any discount or incentive programs to which Customer was previously entitled do not constitute fee increases.

7.3 Customer’s Termination for Convenience Customer may terminate any Sales Order for convenience following expiration of all minimum terms specified in the Sales Order, upon not less than 30 days prior written notice to HarperDB. If Customer terminates any Sales Order under this Section 7.3, Customer will not be entitled to any refund of Subscription Fees paid or relief from Subscription Fees payable under such Sales Order.
 
7.4 Termination for Cause. If either Party materially breaches any of its obligations under this Agreement and fails to cure such breach within thirty (30) days from the date it receives from the non-breaching Party a notice of the breach and a demand for cure, then the non- breaching Party may terminate all or any affected Sales Orders, Licenses or related services immediately on notice. Without limiting the foregoing, Customer’s failure to pay past due Subscription Fees within 15 days of receipt of a written notice of late payment will constitute a material breach of the applicable Sales Order and of the License. If Customer has not cured a material breach within the applicable cure period then, until Customer has cured the breach in full, HarperDB may, in its sole discretion, and without prejudice to its other rights following material breach and failure to cure, (i) suspend performance of some or all of HarperDB’s obligations under the applicable Sales Order, including obligations to provide the Support Program or Installation Services; and (ii) suspend the Licenses granted pursuant to the applicable Sales Order. Notice of termination for any Sales Order will not be interpreted to be notice of termination for any other Sales Order.

7.5 Obligations on Termination. Upon any termination or expiration of a License Customer will destroy all copies of the Software and the Documentation within its custody or control within thirty (30) days of such termination, and immediately provide HarperDB with a written statement signed by an authorized representative of Customer certifying that all copies of the Software have been destroyed and all use of the Software has been discontinued; and (ii) each Party will return or destroy all copies of any Confidential Information of the other.

7.6 Effect of Termination. No expiration or termination of this Agreement or of any Sales Order will relieve Customer of its obligation to pay any amounts accruing under such Sales Order prior to such expiration or termination.

 

Section 8. Confidential Information 
8.1 Restrictions on Use and Disclosure. “Confidential Information” means all information transmitted by either party to the other pursuant to or in connection with this Agreement that the disclosing party identifies as being proprietary or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary or confidential. The receiving party will not disclose the disclosing party’s Confidential Information to any third party, and will protect the disclosing party’s Confidential Information using the same degree of care it uses to protect its own Confidential Information, and in no event less than a reasonable standard of care. The receiving party will not use such Confidential Information except to further the purposes of this Agreement. HarperDB’s Confidential Information includes information regarding products, pre-release products, software, services, pricing, marketing and business plans and financial information. HarperDB and Customer will treat the terms and conditions of this Agreement as confidential.

8.2 Exclusions. Confidential Information will not include information that the receiving party can establish: (i) has entered the public domain without the receiving party’s breach of any obligation owed to the disclosing party; (ii) has been rightfully received by the receiving party from a third party without confidentiality restrictions; (iii) is known to the receiving party without any restriction as to use or disclosure prior to first receipt by the receiving party from the disclosing party hereunder; or (iv) has been independently developed by the receiving party.

8.3 Disclosure Required By Law. If any applicable law, regulation or judicial or administrative order requires the receiving party to disclose any of the disclosing party’s Confidential Information (a “Disclosure Order”) then, unless otherwise required by the Disclosure Order, the receiving party will promptly notify the disclosing party in writing prior to making any such disclosure, in order to facilitate the disclosing party’s efforts to protect its Confidential Information. Following such notification, the receiving party will cooperate with the disclosing party, at the disclosing party’s reasonable expense, in seeking and obtaining protection for the disclosing party’s Confidential Information.

8.4 Independent Development. The terms of confidentiality under this Agreement will not limit either party’s right to independently develop or acquire products without use of the other party’s Confidential Information.

 

Section 9. Purchase through Resellers
9.1 Applicability. This section 9 only applies to Customers purchasing Licenses and subscriptions to the Support Program through an authorized Reseller. If Customer is uncertain as to the applicability of this section to its purchase, Customer should contact HarperDB for further information.

9.2 Resellers. If Customer ordered its License or Support Program subscription from a Reseller, then this Agreement is not exclusive of any rights Customer obtains under the Reseller Sale Agreement; however, if there is any conflict between the provisions of this Agreement and the Reseller Sale Agreement, then the provisions of this Agreement prevail. If a Reseller has granted Customer any rights that HarperDB does not also directly grant to Customer in this Agreement, or that conflict with this Agreement, then Customer’s sole recourse with respect to such rights is against the Reseller.

9.3 Term for Purchases through a Reseller. If Customer ordered the Services through a Reseller, then Sections 7.1-7.3 are inapplicable, and the License term will begin on the Sales Order Effective Date and, subject to the remainder of Section 7, it will expire, renew and terminate in accordance with the terms of the Reseller Sale Agreement.

9.4 Payment for Purchases through a Reseller. If Customer ordered its License or Support Program subscription through a Reseller, then Sections 4.1 and 4.2 do not apply to Customer, and Customer’s billing and payment rights and obligations are governed by the Reseller Sale Agreement. However, if the Reseller from whom Customer purchased the its License or Support Program subscription fails to pay HarperDB any amounts due in connection with Customer’s License or Support Program subscription, then HarperDB may suspend Customer’s License or Support Program subscription, with or without notice to Customer. Customer agrees that Customer’s remedy in the event of such suspension is solely against the Reseller and that HarperDB is not liable to Customer in any manner for such suspension.

 

Section 10. Limitations and Exclusions of Liability
10.1 Exclusion of Certain Claims. IN NO EVENT WILL HARPERDB BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE (INCLUDING DAMAGES FOR LOSS OF DATA OR PROFITS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
 
10.2 Limitation of Liability. Subject to Section 10.3, HarperDB’s liability arising out of each Sales Order will in no event exceed the fees paid to HarperDB under such Sales Order during the 12 month period immediately preceding Customer’s first assertion of any claim under such Sales Order, regardless of whether any action or claim is based in contract, misrepresentation, strict liability, or other tort. This limitation of liability also applies to HarperDB’s Software developers, resellers and suppliers. It is the maximum for which they and HarperDB are collectively responsible.

10.3 Free Trial. With respect to any Free Trial, HarperDB’s aggregate liability will in no event exceed one hundred US dollars, regardless of any theory of liability, and notwithstanding any provision of this Agreement to the contrary.

10.4 General. Customer agrees that the exclusions and limitations specified in this Agreement apply even if the remedies are insufficient to cover all of Customer’s losses or damages, or fail of their essential purpose and that without these limitations the fees for the License and Support Program subscription would be significantly higher. Except with respect to infringement or misappropriation by either party of any of the other party’s Intellectual Property Rights, neither party may commence any action or proceeding under this Agreement more than two years after the occurrence of the applicable cause of action.

 

Section 11. Dispute Resolution
11.1 Governing Law. This Agreement will be governed by and interpreted in accordance with the internal laws of the State of Colorado, and, where such laws are preempted by the laws of the United States, by the internal laws of the United States, in each case without regard to (a) conflicts of laws principles, and (b) the applicability, if any, of the United Nations Convention on Contracts for the International Sale of Goods.

11.2 Disputes. Any disputes arising under this Agreement will be referred to an appropriate senior manager of Customer and an appropriate senior manager of HarperDB who will, within 10 days of written notice of a dispute being served by one on the other, meet by telephone or videoconference in a good faith effort to resolve the dispute without recourse to legal proceedings. Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof that cannot be resolved by the parties, will be finally settled by binding arbitration conducted in the English language in Denver, Colorado, U.S.A. under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”).

 

Section 12. Miscellaneous Provisions.

12.1 Publicity; References. Provided that HarperDB complies with any trademark usage requirements notified to it by Customer, HarperDB may refer to Customer as one of HarperDB’s customers and use Customer’s logo as part of such reference. With Customer’s prior written approval, not to be unreasonably withheld, HarperDB may issue a press release announcing the relationship between HarperDB and Customer.

12.2 Compliance with Laws; Export Control. Customer agrees to comply with all applicable laws, without limitation the export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State. Specifically, Customer covenants that it will not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such technology) received from HarperDB under this Agreement to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. 

12.3 Equitable Relief Each of Customer and HarperDB acknowledges that damages may be an inadequate remedy if the other violates the terms of this Agreement pertaining to protection of a Party’s Intellectual Property Rights or Confidential Information. Accordingly, each of them will have the right, in addition to any other rights each of them may have, to obtain in any court of competent jurisdiction, temporary, preliminary and permanent injunctive relief to restrain any breach, threatened breach, or otherwise to specifically enforce any of such obligations in this Agreement.


12.4 Force Majeure. If the performance of this Agreement is adversely restricted or if either party is unable to conform to any warranty by reason of any circumstances beyond the reasonable control and without the fault or negligence of the party affected, then the party affected, upon giving prompt written notice to the other party, will be excused from such performance on a day-to-day basis to the extent of such restriction; provided, however, that the party so affected will use all commercially reasonable efforts to avoid or remove such causes of non-performance and both parties will proceed as soon as reasonably practical.
 
12.5 Enhancement Analysis. HarperDB may analyze Customer’s usage history and statistics (collectively, “Enhancement Data”) for HarperDB’s internal purposes, including to improve and enhance the Software and related services. Unless otherwise specified in the Sales Order, Customer authorizes and will not interfere with the Software’s transmission of Enhancement Data to HarperDB. HarperDB may make information derived from its analysis of Enhancement Data publically available, provided that the publicized information does not include any Enhancement Data that has not been aggregated and anonymized. For the purposes of this Agreement, aggregated and anonymized Enhancement Data means Enhancement Data that (i) has been aggregated with other data, and (ii) does not contain information that identifies Customer or its Users. For the sake of clarity, aggregated and anonymized data is not Confidential Information of Customer.
 
12.6 Captions and Headings. The captions and headings are inserted in this Agreement for convenience only, and will not be deemed to limit or describe the scope or intent of any provision of this Agreement.
 
12.7 Severability; Invalidity. If any provision of this Agreement is held to be invalid, such invalidity will not render invalid the remainder of this Agreement or the remainder of which such invalid provision is a part. If any provision of this Agreement is so broad as to be held unenforceable, such provision will be interpreted to be only so broad as is enforceable.
 
12.8 Waiver. No waiver of or with respect to any provision of this Agreement, nor consent by a party to the breach of or departure from any provision of this Agreement, will in any event be binding on or effective against such party unless it be in writing and signed by such party, and then such waiver will be effective only in the specific instance and for the purpose for which given.
 
12.9 Third Party Beneficiaries. Except as expressly set forth in this Agreement, no provisions of this Agreement are intended nor will be interpreted to provide or create any third party beneficiary rights or any other rights of any kind in any other party.
 
12.10 Assignment. Customer will not assign any of its rights under this Agreement without the prior written consent of HarperDB, which will not be unreasonably withheld. Subject to the foregoing restriction on assignment by Customer, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
 
12.11 Notices. Any notice or other communication under this Agreement given by either party to the other party will be deemed to be properly given if given in writing and delivered by (i) US mail, certified or registered, return receipt requested, or (ii) nationally recognized air express courier (e.g., Federal Express), properly addressed and prepaid, to the recipient at the address identified in the Sales Order. If HarperDB’s address is not identified in the Sales Order, then notices to HarperDB must be delivered to its main office address, as published at www.HarperDB.com, Attention: Legal Department. Notice periods will begin on the day following delivery. Either party may from time to time change its address by giving the other party notice of the change in accordance with this Section.

12.12 Entire Agreement; Amendments; Conflicts. This Agreement constitutes and embodies the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written, electronic or oral communications, representations, agreements or understandings between the parties with respect thereto. This Agreement may not be modified or amended except by a written instrument executed by both parties. All Software and related services licensed or purchased, as applicable, by Customer under this Agreement will be subject to the terms and conditions of this Agreement. With the exception of order quantities and Subscription Fees, any terms or conditions appearing on the face or reverse side of any purchase order, acknowledgment, or confirmation that are different from or in addition to those specified in this Agreement will not be binding on the Parties, even if signed and returned, unless both Parties agree in a separate writing to be bound by such different or additional terms and conditions. In the event of any conflict between the terms of this Agreement and any Sales Order, the terms of the applicable Sales Order will govern.